in Interest of J.R
Colo. Ct. App.
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
1
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
2
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,
3
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
4
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.
5
¶ 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
6
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
7
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
8
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
9
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
10
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
11
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
12
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
13
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.
14
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
15
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
16
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.
17
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).
18
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.
19
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
20
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.
21
¶ 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.
22
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:
23
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-year-
old 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.
24
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