in Interest of J.R

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

June 10, 2021

2021COA81

No. 17CA2076, People in Interest of J.R. — Juvenile Court — Delinquency — Sexual Assault on a Child — Indecent Exposure;

Evidence — Opinions and Expert Testimony — Testimony of Experts — Evidence of Character and Conduct of Witness

After a jury trial, the juvenile defendant was adjudicated delinquent for acts that if committed by an adult would constitute sexual assault on a child and indecent exposure. On appeal, he contends that the juvenile court plainly erred in allowing a medical doctor to testify that, based solely on one of the child victim’s allegations, she had diagnosed that victim with “sexual abuse.” A division of the court of appeals holds that the doctor’s expert testimony impermissibly bolstered the victim’s credibility and usurped the jury’s role as fact finder. However, the division concludes that the error, while obvious, does not cast serious doubt on the reliability of the jury’s verdict. And because the division rejects the juvenile’s other argument concerning prosecutorial misconduct, it affirms the judgment.

COLORADO COURT OF APPEALS 2021COA81

Court of Appeals No. 17CA2076 City and County of Denver Juvenile Court Nos. 15JD925 & 15JD945 Honorable Laurie A. Clark, Judge

The People of the State of Colorado, Petitioner-Appellee, In the Interest of J.R., Juvenile-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE HARRIS Román and Lipinsky, JJ., concur

Announced June 10, 2021

Philip J. Weiser, Attorney General, Daniel J. De Cecco, Assistant Attorney General Fellow, Denver, Colorado, for Petitioner-Appellee Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant ¶1 After a jury trial, J.R. was adjudicated delinquent for acts against two victims that, if committed by an adult, would constitute sexual assault on a child and indecent exposure.

¶2 On appeal, his primary argument is that the juvenile court plainly erred by allowing a medical doctor to testify that, based on one victim’s statements, she had diagnosed the victim with “sexual abuse.” Although we conclude that the juvenile court erred, we also conclude that admission of the testimony did not constitute plain error warranting reversal. And because we reject J.R.’s other argument concerning prosecutorial misconduct, we affirm.

I. Background

¶3 The charges against J.R. arose from allegations made by A.M. and her cousin E.P. After A.M.’s parents separated, she stayed part of each week with her father (E.P.’s uncle), who lived with his girlfriend and her son, J.R.

¶4 In 2011, when A.M. and E.P. were both eight years old and J.R. was thirteen, A.M. told her mother that J.R. had touched her vaginal area. During a subsequent forensic interview, A.M. described sexual contact by J.R. and said that E.P. had been present when it occurred. Following the allegations, the girls were no longer permitted to stay overnight at father’s home, but their parents allowed them to visit after school when father was there.

¶5 Four years later, during an argument in which her parents angrily confronted her about her troubling behavior, E.P. reported that J.R. had been sexually abusing her for years. In additional forensic interviews, the girls reported multiple instances of sexual abuse by J.R. The prosecution filed delinquency petitions charging J.R. with six counts of sexual assault on a child, two counts of indecent exposure, and six aggravated juvenile offender sentence enhancers.

¶6 Both A.M. and E.P. testified at trial, and their recorded forensic interviews were admitted into evidence. Family members described the victims’ outcries and a social worker provided context for the girls’ statements and conduct.

¶7 Through counsel, J.R. denied any abuse. The defense argued that the abuse would have been seen or heard by one of the adults who was always present when the girls visited father’s home. The defense’s theory was that A.M. had fabricated the allegations as part of her mother’s plan to obtain sole custody, and that E.P. had fabricated the allegations to deflect attention from, and to avoid the

consequences of, her own bad behavior.

¶8 The jury found J.R. guilty on all counts.

II. Expert Witness Testimony

¶9 J.R. contends that the juvenile court erred by admitting a

medical doctor’s testimony that, based only on E.P.’s consistent

statements, she had diagnosed E.P. with “sexual abuse.”

A. Additional Background

¶ 10 At trial, Dr. Katherine Snyder, a child abuse pediatrician,

testified as an expert in the areas of pediatric medicine and child

sexual assault. Her testimony focused on her examination of E.P.

¶ 11 According to Dr. Snyder, “concerns had been raised” that E.P.

had been sexually abused, and Dr. Snyder was brought in to “do

the medical piece of the evaluation.” She testified that a sexual

abuse exam and diagnosis follows the same procedure as any other

medical exam and diagnosis — it includes a “head-to-toe” physical

examination and a discussion with the patient and family to obtain

a medical and social history.

¶ 12 In E.P.’s case, Dr. Snyder asked the victim only limited “basic

questions” because E.P. had already undergone a forensic interview, and the doctor did not “want to make her go through all of those details again.” Dr. Snyder testified that during the exam, E.P.

reported that J.R. had penetrated her vagina with his penis,

causing pain and bleeding.

¶ 13 E.P.’s physical examination was “normal,” according to Dr.

Snyder, with no signs of physical trauma. She explained, however,

that E.P. tested positive for bacterial vaginosis, a condition typically

associated with sexual intercourse but not necessarily a sign of

sexual abuse.

¶ 14 The prosecutor then asked Dr. Snyder if she had made a

diagnosis:

[PROSECUTOR]: So, at the conclusion of your examination with [E.P.], did you reach any sort of diagnosis?

[DR. SNYDER]: I did.

[PROSECUTOR]: Okay. What was your

diagnosis?

[DR. SNYDER]: I diagnosed her with sexual abuse.

[PROSECUTOR]: Okay. Can you explain that to the jury.

[DR. SNYDER]: Yes. So, as we just talked about, we don’t need physical findings, right, to diagnose sexual abuse. If you read the most

up-to-date literature, technically all you need

is consistent disclosure, meaning the child has told you something, and it’s not just told you something, but it’s really this child had told the same information to multiple people by the time she had seen me, and the information she told me was the same information she had told other individuals, including people not within her family. So, it was like in her forensic interview, like independent sources. When you have a child or even a teenager who is giving you clear detailed information and it’s consistent over repeated tellings, that is very consistent with a diagnosis, and that’s all you need to diagnose sexual abuse.

¶ 15 Dr. Snyder also testified briefly about A.M., who had been

examined by Dr. Snyder’s colleague. Dr. Snyder did not testify that she or her colleague had diagnosed A.M. with sexual abuse.

B. Standard of Review

¶ 16 A trial court has broad discretion to determine the

admissibility of expert testimony under CRE 702, and we will not overturn its ruling absent a showing of an abuse of that discretion. People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). A trial court abuses its discretion if its ruling was manifestly arbitrary, unreasonable, or unfair, or if it misconstrued or misapplied the law. See People v. Relaford, 2016 COA 99, ¶ 25.

¶ 17 Because defense counsel did not object to the challenged

testimony, we review for plain error. Id. at ¶ 36. An error is plain,

and therefore requires reversal, if it was obvious and “so

undermined the fundamental fairness of the trial itself . . . as to

cast serious doubt on the reliability of the judgment of conviction.”

Hagos v. People, 2012 CO 63, ¶ 14 (citation omitted).

C. Analysis

¶ 18 J.R. contends that Dr. Snyder’s testimony that she had

diagnosed E.P. with sexual abuse, based solely on E.P.’s allegations,

was the functional equivalent of an expert opinion that E.P. was

credible. Therefore, he says, admission of the testimony violated

the rules prohibiting an expert from vouching for another witness’s

truthfulness and from usurping the jury’s role as fact finder. We

agree, but we conclude that the error in admitting the testimony

was not plain.

1. Admissibility of the Evidence

¶ 19 Under the Colorado Rules of Evidence, a witness may offer

expert testimony if she has “scientific, technical, or other

specialized knowledge” that “will assist the trier of fact to

understand the evidence or to determine a fact in issue,” and she is qualified as an expert based on that knowledge. CRE 702. Still, other rules and principles constrain an expert’s testimony.

¶ 20 While an expert in a child sexual assault case can testify

about the general characteristics and behavior of sexual abuse

victims, see People v. Fasy, 829 P.2d 1314, 1318 (Colo. 1992)

(expert testimony concerning post-traumatic stress disorder is

admissible to explain child victims’ behaviors); Relaford, ¶¶ 28-30

(an expert may testify as to the typical demeanor and behavioral

traits displayed by a sexually abused child and collecting cases), the

expert may not testify — directly or indirectly — that the victim is

credible or that she was telling the truth on a particular occasion,

see CRE 608(a); Venalonzo v. People, 2017 CO 9, ¶¶ 32-33; see also

People v. Snook, 745 P.2d 647, 648 (Colo. 1987) (social worker’s

testimony that children tend not to fabricate stories of sexual abuse

was inadmissible because it was tantamount to testimony that the

child victim was telling the truth in that case).

¶ 21 And while expert testimony is not objectionable merely

because it embraces an ultimate issue to be decided by the jury,

CRE 704; People v. Rector, 248 P.3d 1196, 1203 (Colo. 2011), an

expert witness cannot “tell the jury what result to reach or form conclusions for the jurors that they are competent to reach on their own,” People v. Baker, 2019 COA 165, ¶ 14, aff’d, 2021 CO 29; see

also Venalonzo, ¶ 32 (The danger in admitting testimony that a

child victim is truthful “lies in the possibility that it will improperly

invade the province of the fact-finder.”).

¶ 22 “The line between opinion testimony that improperly bolsters a

witness’s credibility and admissible testimony that may only

collaterally enhance the witness’s credibility is sometimes a difficult

one to draw.” People v. Battigalli-Ansell, 2021 COA 52M, ¶ 50. But

here, we have no difficulty in concluding that Dr. Snyder’s

testimony crossed the line into impermissible opinion testimony

that E.P.’s allegations were credible, and that sexual abuse had

occurred.

¶ 23 Dr. Snyder testified that based on E.P.’s “clear,” “detailed,” and

“consistent” allegations, she had diagnosed E.P. with “sexual

abuse.” The only purpose of this testimony was to bolster E.P.’s

credibility. See Venalonzo, ¶ 36 (the only purpose of the expert’s

testimony comparing child victims’ behavior to that of other child

sex assault victims was to bolster the children’s credibility). While

Dr. Snyder did not say directly that she believed E.P., her testimony could only be understood as an expert opinion that E.P.’s allegations were so objectively credible that, even in the absence of

any corroborating physical symptoms, they could properly form the

basis of an unequivocal diagnosis. See Baker, ¶ 20 (“Though [the

expert] didn’t specifically tell the jury that she thought the

[witnesses] were telling the truth, she spoke as though their

allegations were true, which suggested that she had drawn her own

conclusions about the [witnesses’] credibility.”).

¶ 24 Similar facts were presented in People v. Gillispie, 767 P.2d

778 (Colo. App. 1988). There, a pediatric specialist who had

examined the child victim wrote a report indicating that the child’s

allegations of assault “were very detailed and specific.” Id. at 780.

At trial, the expert testified that the details were important to her

evaluation, and when asked if she had made a diagnosis, the

witness answered, “I believe the child, I felt that she was sexually

abused.” Id. The division concluded that the witness’s opinion

about the child’s veracity was “clearly improper.” Id.

¶ 25 The doctor’s testimony in this case is nearly identical to the

testimony in Gillispie, the only difference being that Dr. Snyder did

not explicitly say that she believed E.P.; rather, that opinion was implicit. But it is equally improper for an expert to bolster a child victim’s credibility indirectly as it is to do so directly. In Snook, for

example, the expert testified that “children tend not to fabricate

stories of sexual abuse” and that, “in order to make these things

up, there has to be a basis for that experience . . . .” 745 P.2d at

648. The supreme court reasoned that although the expert

“couched her testimony in general terms, the opinion testimony

necessarily refer[red] to [the victim’s] character for truthfulness.”

Id. at 649. At bottom, the testimony was “an expert opinion that

[the victim] is almost certainly telling the truth.” Id.

¶ 26 The People contend that the doctor merely offered a medical

diagnosis, rather than a personal assessment of E.P.’s credibility.

We disagree. The Michigan Supreme Court recently rejected that

same argument in a well-reasoned opinion, People v. Thorpe, 934

N.W.2d 693 (Mich. 2019). In that case, a medical doctor opined

that the child victim, whose examination showed no physical

evidence of an assault, suffered “probable pediatric sexual abuse.”

Id. at 710. Her diagnosis was based “solely on her own opinion that

[the child’s] account of the assaults was ‘clear, consistent, detailed

and descriptive.’” Id. The court of appeals had found no obvious error in the trial court’s admission of the testimony, on the theory that the doctor had “merely stated a medical diagnosis based on

established diagnostic criteria, all of which were explained to the

jury.” Id. at 704 (citation omitted). But the supreme court

disagreed, concluding that the testimony was “nothing more than

the doctor’s opinion that the victim had told the truth.” Id. at 710

(quoting People v. Smith, 387 N.W.2d 814, 818 (Mich. 1986 . The

court held that a doctor’s testimony is not admissible if based solely

on what the victim told the doctor because the jury could, and

should, evaluate the victim’s testimony itself. Id.; see also State v.

Bainbridge, 241 P.3d 1186, 1187 (Or. Ct. App. 2010) (nurse’s

testimony that she had diagnosed the victim with sexual abuse

impermissibly vouched for the victim’s credibility because, absent

physical findings, the diagnosis “necessarily was based on her

assessment of the child’s believability” (quoting State v. Lupoli, 234

P.3d 117, 125 (Or. 2010 .

¶ 27 The same is true here. Because Dr. Snyder’s expert opinion

was based solely on E.P.’s allegations, about which E.P. testified at

trial, the jury could determine for itself whether E.P. was credible and whether her testimony supported a finding that she had been sexually abused.

¶ 28 In this way, Dr. Snyder’s testimony not only improperly

bolstered E.P.’s credibility, but it usurped the jury’s role as fact

finder. The testimony resolved one of the ultimate legal issues in

the case — whether E.P. had been sexually abused. “[E]xpert

opinion that a rape or sexual assault actually occurred is

inadmissible,” as the jury is likely to defer to an expert, whose

opinions are cloaked in an “aura of special reliability and

trustworthiness.” People v. Koon, 724 P.2d 1367, 1371 (Colo. App.

1986). Whether the sexual abuse occurred was a disputed issue in

this case, so whether E.P. was “telling the truth about what

happened was a matter solely for the jury’s determination.” Baker,

¶ 20.

¶ 29 True, as we have noted, an expert may, when certain

requirements are satisfied, testify on an ultimate issue to be

decided by the jury. But the requirements were not satisfied here.

¶ 30 To determine whether expert testimony usurped the function

of the jury, we examine whether (1) the testimony was clarified on

cross-examination; (2) the expert’s testimony expressed an opinion of the applicable law or legal standards; (3) the jury was properly instructed that it may accept or reject the expert’s opinion; and (4)

the expert opined that the defendant committed the crime or that

there was a particular likelihood that the defendant committed the

crime. Rector, 248 P.3d at 1203.

¶ 31 Dr. Snyder’s testimony concerning her diagnosis of sexual

abuse suggested that the relevant legal standard had been met. In

Rector, the doctor acknowledged that the legal definition of child

abuse differs from the medical definition, and he declined to offer a

legal definition of child abuse. Id. at 1199. But here, there was no

evidence presented of any difference between legal and medical

definitions of sexual abuse. And because Dr. Snyder’s diagnosis

was based solely on E.P.’s allegations, the same evidence the jury

would assess in reaching a verdict, the jury was likely to conclude

that Dr. Snyder’s diagnosis referred to a legal standard.

¶ 32 Moreover, although Dr. Snyder did not directly implicate J.R.

in her testimony, she did so indirectly. She testified that E.P. had

identified J.R. as the abuser. Then, she effectively told the jury that

she had accepted E.P.’s history as truthful and accurate and had

therefore relied on it exclusively in reaching her diagnosis of sexual abuse. Thus, the jury would likely have inferred that Dr. Snyder’s expert opinion encompassed the identification of J.R. as the

perpetrator. Cf. id. at 1203 (doctor did not testify that the

defendant committed the abuse); People v. Weeks, 2015 COA 77,

¶ 91 (expert testimony that the victim had been subjected to child

abuse and nonaccidental trauma did not usurp jury’s role where

the expert did not opine regarding whether the defendant inflicted

the injuries or whether those injuries fit the legal definition of child

abuse).

¶ 33 Because Dr. Snyder’s testimony impermissibly bolstered E.P.’s

credibility and usurped the jury’s role as fact finder, the juvenile

court erred by admitting it.

2. The Error Was Not Plain

¶ 34 As we have explained, an error is plain if it is obvious and

substantial, meaning that the error is so egregious that it causes us

to question the reliability of the judgment. See Hagos, ¶ 14.

¶ 35 Although the error in admitting Dr. Snyder’s testimony was

obvious, it was not so substantial that it casts serious doubt on the

reliability of the verdict.

Whether the erroneous admission of testimony

that a child victim was credible is plain error “turns to a considerable extent on both the strength and breadth of the properly admitted evidence, the extent and significance of the improper evidence or testimony, and the reliance, if any, of the prosecution in closing arguments on the improper evidence.”

Relaford, ¶ 43 (quoting People v. Cook, 197 P.3d 269, 276 (Colo.

App. 2008 .

¶ 36 First, because E.P. testified and her forensic interview was

admitted, the jury could evaluate her credibility “firsthand.” People

v. Anderson, 183 P.3d 649, 652 (Colo. App. 2007); People v. Eppens,

979 P.2d 14, 18 (Colo. 1999) (error in admitting testimony that

bolstered credibility of the victim was mitigated by the fact that the

victim testified at length, “providing the jury with a full opportunity

to judge her credibility”). E.P.’s testimony, her forensic interview

statements, and the testimony of family members to whom she had

described the abuse showed consistency in her accounts and could

have provided a basis, independent of Dr. Snyder’s improper

testimony, for the jury to credit her allegations. See Gillispie, 767

P.2d at 780-81 (where child victim described the assaults to four

different people and each disclosure was consistent, pediatric specialist’s testimony that she “believe[d] the child” and “felt that she was sexually abused” was harmless).

¶ 37 Second, because Dr. Snyder acknowledged that her diagnosis

was based entirely on E.P.’s own self-reporting, the risk that the

jury simply deferred to her opinion is lower than it would be in a

case where the expert suggests that her opinions are based on

information not shared with the jury. Cf. Baker, ¶ 22 (admission of

expert’s improper testimony was not harmless because expert

implied that she knew more about the facts than the jury did); see

People v. McFee, 2016 COA 97, ¶¶ 77-79 (police officer’s testimony

about what the defendant had said on a recording was improper,

but because jury could listen to the recording for itself, it “had no

reason to accept [the officer’s] opinion”).

¶ 38 Third, there was evidence corroborating E.P.’s allegations.

E.P., her mother, and her grandmother all testified that when E.P.

was eight years old, two years before she started menstruating, she

came home from her father’s house and went into the bathroom,

where she noticed a rash on her vagina and blood in her

underpants. And Dr. Snyder testified that she diagnosed E.P. with

bacterial vaginosis, a condition associated with sexual activity. See People v. Gaffney, 769 P.2d 1081, 1088-89 (Colo. 1989) (doctor’s testimony that child victim’s history, which included a statement

that defendant had sexually assaulted him, was “very believable”

was harmless because statement to doctor was corroborated by

other evidence, including results of the physical exam).

¶ 39 Finally, in the context of the entire trial, at which nineteen

witnesses, including another expert, testified, Dr. Snyder’s improper

testimony was not prominent. And the prosecutor did not mention

her testimony during closing arguments except with respect to her

diagnosis of bacterial vaginosis. See Relaford, ¶ 48 (no plain error

from admission of improper expert testimony where prosecutor did

not emphasize testimony in closing argument).

¶ 40 We therefore conclude that the erroneous admission of the

challenged testimony did not amount to plain error.

III. Prosecutorial Misconduct

¶ 41 J.R. also contends that the prosecutor committed reversible

misconduct during opening statement and closing argument. We

are not persuaded.

A. Preservation and Standard of Review ¶ 42 When reviewing claims of prosecutorial misconduct, we engage

in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). We first determine whether the prosecutor’s conduct was improper under the totality of the circumstances and then determine whether the conduct warrants reversal under the proper standard of review. Id.

¶ 43 Defense counsel objected to the prosecutor’s comment asking

the jury to “vindicate” the victims, but J.R. did not preserve his claim as to the prosecutor’s other challenged statements. Thus, we apply a harmless error standard in reviewing the prosecutor’s “vindicate” statement, see Crider v. People, 186 P.3d 39, 44 (Colo. 2008), but a plain error standard in reviewing the other challenged statements, People v. Vialpando, 2020 COA 42, ¶ 34. “To constitute plain error, misconduct must be flagrant or glaring or tremendously improper . . . .” People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).

B. Instances of Alleged Misconduct

1. Appeal to Jurors’ Emotions and Sympathy ¶ 44 J.R. says that the prosecutor improperly attempted to appeal

to the jurors’ emotions and sympathy when he

• referred to the “stigma of being sexually assaulted” and the

“shame and embarrassment of being engaged in sexual acts” at a young age;

• characterized sexual assault as a “heinous crime”; and • asked the jury to “vindicate” the victims and to “hold [J.R.]

accountable.”

¶ 45 The prosecutor’s references to the “stigma” of sexual assault

and the “shame and embarrassment” a child victim might feel, as well as his characterization of sexual assault as a “heinous crime,” were attempts to explain why the victims in this case were unlikely to have fabricated the allegations against J.R.:

[The defense is] saying that those two girls, [A.M. and E.P.], want to falsely join themselves among those who have to carry the stigma of being sexually assaulted; that those two girls want to feel or have to go through the shame and embarrassment of being engaged in sexual acts at an age that is not normal, and that they’re telling their family that, even though it didn’t happen.

The implication is that those two girls are

willing to suggest, not just that [J.R.] committed a crime, but committed a heinous crime, and they’re ok with it.

¶ 46 A prosecutor is afforded considerable latitude in responding to

the defense’s theory of the case. See People v. Wallace, 97 P.3d

262, 269 (Colo. App. 2004). Under the circumstances, the

prosecutor was entitled to counter the defense’s attack on the

credibility of the child victims. See People v. Krutsinger, 121 P.3d

318, 324 (Colo. App. 2005).

¶ 47 The prosecutor’s request that the jurors “vindicate” the victims

by holding J.R. accountable comes closer to the line. A prosecutor

should not encourage the jury to depart from its duty to decide the

case on the evidence by suggesting that guilty verdicts are

necessary to do justice for a sympathetic victim, People v. McBride,

228 P.3d 216, 223 (Colo. App. 2009), or by appealing to the

“emotionalism . . . of the jurors,” People v. Eckert, 919 P.2d 962,

967 (Colo. App. 1996). But even if we assume that the comment

was improper, any error in allowing it was harmless. The comment

was likely to be interpreted by the jury as merely an overly dramatic

and inartful way of asking the jury to return a guilty verdict based on the evidence. See People v. Romero, 2015 COA 7, ¶ 49 (error in allowing prosecutor’s comment that the jury should “[d]o [its] job”

and “[h]old [the defendant] accountable” was harmless because

comments were a request for jurors to come to a decision based on

the evidence presented at trial).

2. Expressing Personal Opinions

¶ 48 J.R. says that the prosecutor expressed his personal opinion

when he

• said that testifying about sexual abuse was hard for young

children;

• said that “girls do not want to be victims of sexual assault”; • argued that it would be “cruel” for the girls to fabricate sex

assault allegations against J.R.; and

• told the jury during opening statement that “you’re going to

find [A.M. and E.P.] credible.” ¶ 49 J.R. argues that the first three comments implied that the

prosecutor “had expertise in such matters, perhaps derived from his

position as a deputy district attorney,” and the fourth comment

constituted impermissible vouching.

¶ 50 A prosecutor improperly bolsters a witness’s testimony by

implying that the testimony is corroborated by evidence known to the State but not the jury, and a prosecutor improperly vouches for a witness’s credibility by indicating a personal belief in the witness’s credibility. People v. Coughlin, 304 P.3d 575, 582 (Colo. App. 2011). We cannot conclude that a reasonable jury would have inferred from the prosecutor’s first three statements that he had some special knowledge about children that bolstered the victims’ testimony. Rather, we are confident that the jurors assumed the prosecutor was speaking from everyday experience and common sense.

¶ 51 In context, the prosecutor’s statement that the jury would find

the victims credible was not improper. At the end of his opening statement, in which he discussed some counterintuitive issues associated with child victims, the prosecutor said, “[B]ut at the conclusion of this trial, when you consider . . . their credibility, you’re going to find them credible.” We interpret that statement as a permissible reference to evidence that would be subsequently adduced at trial. See People v. Manyik, 2016 COA 42, ¶ 26.

3. Denigrating the Defense ¶ 52 J.R. says the prosecutor denigrated the defense when he

• characterized the defense theory that A.M. and E.P. had

fabricated the allegations as a “cruel narrative” and

• accused the defense of “trying to hide” a fact. ¶ 53 A prosecutor may “employ rhetorical devices and engage in

oratorical embellishment,” but he may not denigrate defense counsel or imply that the defense is not being asserted in good faith. People v. Carter, 2015 COA 24M-2, ¶ 70 (quoting People v. Collins, 250 P.3d 668, 678 (Colo. App. 2010 . The prosecutor’s statements amounted to mere oratorical embellishment and cannot reasonably be viewed as denigrating the defense. See People v. Serpa, 992 P.2d 682, 686 (Colo. App. 1999) (permissible for counsel to make remarks suggesting that defense evidence was designed as a “diversion” to “sidetrack” the jury because they drew from evidence at trial).

4. Lowering the Burden of Proof ¶ 54 J.R. says that the prosecutor lowered the burden of proof

when he made the following comment in opening statement:

This is not going to come out clean, because

sexual assault on child cases don’t, because

it’s too hard for 8 and 9 and 12 and 13-yearold girls to talk about, but at the conclusion of this trial, when you consider . . . their

credibility, you’re going to find them credible,

and when that happens, they will be

vindicated and you will hold [J.R.]

accountable.

Unlike J.R., we do not interpret the prosecutor’s statement as a request that the jury “excuse any gaps in the evidence.” Instead, we agree with the People that the prosecutor was referring to the complicating factors inherent in child sexual assault cases and was not attempting to lower the burden of proof. See Domingo-Gomez v. People, 125 P.3d 1043, 1051 (Colo. 2005) (court should give prosecutor the benefit of the doubt where remarks are ambiguous or inartful).

IV. Conclusion

¶ 55 The judgment is affirmed.

JUDGE ROMÁN and JUDGE LIPINSKY concur.