People v. Short
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
April 5, 2018
2018COA47
No. 15CA1175 People v. Short-15CA1175 — Evidence —
Remainder of or Related Writings or Recorded Statements —
Hearsay Exceptions — Attacking and Supporting Credibility of
Declarant
Declining to follow People v. Davis, 218 P.3d 718 (Colo. App.
2008), a division of the court of appeals holds that a defendant’s
exculpatory statement to the police admissible under the rule of
completeness is not subject to impeachment under CRE 806.
Accordingly, the division determines that it was error, albeit
harmless, for the trial court to conclude that the defendant’s
statement, if admitted, was subject to impeachment under CRE
806.
The division also rejects the defendant’s contention that
reversal is required because three witnesses improperly bolstered
the credibility of the victim. Finally, the division agrees that the
trial court incorrectly entered separate convictions for sexual
assault on a child and sexual assault on a child-pattern of abuse.
Because the division determines that the pattern of abuse count
acts only as a sentence enhancer, one count has to be vacated.
COLORADO COURT OF APPEALS 2018COA47
Court of Appeals No. 15CA1175
Mesa County District Court No. 13CR1151
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Roger Lee Short,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
Hawthorne, J., concurs
Welling, J., specially concurs
Announced April 5, 2018
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Roger Lee Short, appeals the judgment of
conviction and sentence entered on a jury’s verdicts finding him
guilty of sexual assault on a child and sexual assault on a child-
pattern of abuse. We affirm in part, vacate in part, and remand
with directions.
I. Background
¶2 While driving with her Grandmother L in July 2013, the
victim, an eight-year-old girl, saw Short napping in the park. The
victim began to yell, while ducking down in her booster seat in
order to hide from him. When Grandmother L asked what was
wrong, the victim responded that she hated Short and was going to
stab him someday because he had been “touching” her and
“messing with” her. Upon further questioning, the victim said Short
had been touching her “down there,” pointing to her vaginal area;
had masturbated in front of her while the rest of her family had
gone outside to smoke; and had told her he would kill her if she
ever told anyone. Later, the victim disclosed that Short had also
digitally penetrated her anus and made her dance naked.
¶3 Short had dated the victim’s other grandmother, Grandmother
K, for four years, and they often visited the then four-to-seven-year-
1
old victim at the victim’s home. During this time, Grandmother L
and the victim’s mother were concerned that the victim was being
sexually assaulted because she had vaginal redness and swelling,
experienced behavioral changes, suffered from repeated urinary
tract infections, and had regressed in her toilet training. Several
times, they asked the victim if Short or anybody else was sexually
assaulting her. When Grandmother L asked if “anybody was
touching her . . . she would say no. But, if [Grandmother L] asked
her if [Short] was touching her, she would not answer
[Grandmother L].”
¶4 When questioned by police, Short admitted knowing the
victim’s family and visiting her home. He also stated that he was
aware of the victim’s incontinence issues and that “someone’s
abusing her.”
¶5 The prosecution charged Short with two counts of sexual
assault on a child and two counts of sexual assault-pattern of
abuse. One set of sexual assault and sexual assault–pattern of
abuse charges was based on acts of fondling; the other was based
on acts of digital penetration.
2
¶6 At trial, the victim testified in some respects inconsistently to
what she had previously told others. Additionally, she could not
remember how Short used to “play with her” and if she saw Short
touch himself. She had difficulty remembering where Short
touched her, although she eventually indicated that he touched her
on “her privates.” Consequently, the prosecution introduced
evidence of the victim’s prior statements and of possible reasons for
discrepancies or inconsistencies between those statements and the
victim’s trial testimony.
¶7 In his defense, Short presented two witnesses: (1) the victim’s
primary care physician, who testified that the victim’s incontinence
issues were attributable to physical abnormalities and not sexual
assault; and (2) a clinical psychologist, who testified that
Grandmother L’s presence during a forensic interview tainted the
victim’s answers. In closing argument, he asserted that the victim’s
allegations had been suggested to her by her mother’s and
Grandmother L’s repeated questions about whether Short had
sexually abused her, and that the family’s repeated questions gave
the victim an outlet to assign blame for her incontinence and issues
at home. This theory was supported, he argued, by the fact that
3
the victim waited four years to report the abuse, despite having
been repeatedly questioned about it beforehand.
¶8 The jury acquitted Short of the sexual abuse counts relating to
the digital penetration allegations. It found him guilty, however, of
sexual assault on a child and sexual assault on a child-pattern of
abuse in connection with the fondling allegations. The trial court
imposed two concurrent sentences on Short; the longer was for nine
years to life imprisonment in the custody of the Department of
Corrections.
II. Bolstering Evidence
¶9 Short contends that the testimony of three witnesses
improperly bolstered the victim’s credibility. We conclude that
reversal is not warranted.
¶ 10 Short focuses on the testimony of the following witnesses:
a family therapist who, though unfamiliar with the victim
or the facts of this case, answered a series of hypothetical
questions based on the circumstances of the case to
explain how a child like the victim might (1) not be able
to disclose in court things such as anal penetration and
naked dancing after having disclosed them in a clinical
4
environment; (2) have an extreme visceral reaction upon
seeing her abuser for the first time in over a year; and (3)
make inconsistent statements, without that necessarily
being a sign of fabrication on the child’s part;
a detective who, remembering the therapist’s testimony
about it not being uncommon for a child to fail to
disclose anal penetration, testified that, based on his
training, experience, and observations of interviews, that
was the case; and
Grandmother L, who, in response to a question about
whether she was concerned that the victim would not be
honest with her, said, “No. She, she normally would not
lie about something like that.”
¶ 11 Significantly, Short did not object to any of this testimony.
Consequently, reversal is not warranted in the absence of plain
error. See Crim. P. 52(b); People v. Sommers, 200 P.3d 1089, 1095
(Colo. App. 2008).
¶ 12 It is improper for a witness to testify to whether another
“witness was telling the truth on a specific occasion because it is
solely the jury’s responsibility to determine whether a particular
5
witness’s testimony or statement is truthful.” People v. Bridges,
2014 COA 65, ¶ 11. “This rule applies to both direct and indirect implications of a [witness’s] truthfulness.” Venalonzo v. People,2017 CO 9
, ¶ 32.
A. The Therapist
¶ 13 Our case law recognizes that “‘[a]n expert may testify as to the
typical demeanor and behavioral traits displayed by a sexually
abused child,’ . . . because it assists the jury in understanding the
victim’s behavior after the incident — why the victim acted the way
he or she did.” People v. Relaford, 2016 COA 99, ¶ 28 (quoting People v. Mintz,165 P.3d 829
, 831 (Colo. App. 2007)). This type of expert testimony “aid[s] the jury in understanding the typicality of reactions by [children] who have been subjected to sexual abuse that might, under other circumstances, be considered bizarre.” People v. Morrison,985 P.2d 1
, 6 (Colo. App. 1999), aff’d,19 P.3d 668
(Colo. 2000); accord People v. Fasy,829 P.2d 1314
, 1317 (Colo.
1992) (The doctor’s “testimony clearly assisted the jury in
understanding the victim’s behavior after the incident.”).
¶ 14 This type of evidence is considered proper because it “(1)
relates to an issue apart from credibility and (2) only incidentally
6
tends to corroborate a witness’s testimony.” Relaford, ¶ 31 (quoting
People v. Cernazanu, 2015 COA 122, ¶ 20). This evidence does not say whether the child was or was not lying on a specific occasion; instead, it explains why a jury should not necessarily disbelieve a child because of circumstances that, in a different context, would discredit the child’s story. See People v. Whitman,205 P.3d 371
, 383 (Colo. App. 2007). Such information provides “a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation.”Id. (quoting People
v. Aldrich,849 P.2d 821
, 829 (Colo. App. 1992)); see also State v. Myers,359 N.W.2d 604
, 610 (Minn. 1984) (“Background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children.”)) (quoted with approval by the supreme court inFasy, 829 P.2d at 1317
).
¶ 15 The present case is, in many respects, like People v. Mintz.
There, as here,
7
the expert . . . answered a number of
hypothetical questions reflecting the facts of
the present case. The expert testified about
traits and behavior generally exhibited by
children. He did not testify [the] victim
exhibited these traits, and he did not offer an
opinion about whether [the] victim told the
truth about having been abused.
The purposes for which the expert’s testimony
was admitted in the case have previously been
deemed proper. . . .
....
This evidence was admissible “because the
expert testified in general terms [and] did not
focus on the truthfulness of the child’s
statements.”
Mintz, 165 P.3d at 831-32 (quotingMorrison, 985 P.2d at 5
); see alsoMorrison, 985 P.2d at 5
(“The hypothetical question posed to
this witness contained facts substantially identical to those
disclosed by the evidence here, i.e., one of the victims had made
rather bizarre accusations against defendant and had later
withdrawn them. The expert’s opinion that such actions are typical
of the method of empowerment used by young male victims was
admissible under CRE 702 to explain that such accusations and
later denials by such a victim are not necessarily unusual.”).
8
¶ 16 We reject Short’s assertion that Mintz and Morrison were
wrongly decided. Persuaded by those authorities, we perceive
nothing improper about the therapist’s testimony here.
¶ 17 In reaching this conclusion, we are cognizant of the supreme
court’s recent decision in Venalonzo. In that case, a forensic
interviewer “testified about the two girls’ interviews and compared
their behavior to that of other child sex assault victims.
Specifically, she stated that many of the children’s behaviors were
common to [those of] other child sex assault victims she had
interviewed . . . .” Venalonzo, ¶ 35. The supreme court held that
“the only purpose for the interviewer’s testimony comparing [the two
children’s] behavior to that of other child sex assault victims was to
bolster the children’s credibility. Admitting this evidence did not
make any other fact at issue more or less probable.” Id. at ¶ 36 (citation omitted). Consequently, the court held that the interviewer’s testimony “improperly bolstered the credibility of the child victims by creating an impermissible inference that they were telling the truth in this case.”Id. at ¶
2.
¶ 18 Venalonzo is distinguishable from the present case. Unlike the
present case, the expert in Venalonzo was intimately involved with
9
the child victims in the case. She was the individual who took their
statements, testified to their behaviors, and compared their
behaviors to those she saw in other child sexual abuse cases. The
interviewer was, therefore, testifying as both a fact witness and an
expert. The jury could not help but interpret what the expert had to
say, in light of her dual role, as intimating her opinion that the
children had been truthful during the interview.
¶ 19 In the present case, the therapist did not play a dual role. She
was not involved in taking — and did not otherwise witness — the
victim’s statements. Her expert opinions could not be interpreted
as conveying an opinion of her belief in the truthfulness of the
victim on another occasion.
¶ 20 Notably, the court in Venalonzo did not repudiate or retreat
from its earlier decision in Fasy — a decision consistent with the
principles and authorities upon which we rely here. Consistent
with Fasy, the therapist’s testimony here permissibly conveyed to
the jury information that would assist it in evaluating what might
appear to be puzzling aspects of the victim’s behavior subsequent to
the commission of the alleged offense. Although that evidence “may
incidentally give rise to an inference that a victim is or is not telling
10
the truth about the specific incident,” “this fact alone is insufficient
to deny admission of the evidence, because expert testimony
generally tends to bolster or attack the credibility of another
witness.” People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986).
B. The Detective
¶ 21 We also perceive nothing improper about the detective’s
testimony. The detective was not testifying to the truthfulness of
the therapist, and thus, inferentially, of the victim too. The
detective was simply relating to the jury his observations about
child victim disclosures; he rendered no opinion about whether a
child’s difficulty in disclosing something made it more or less likely
that he or she was telling the truth.
C. Grandmother L’s Testimony
¶ 22 Based on our reading of other parts of Venalonzo and of
Cernazanu, we conclude that Grandmother L’s testimony that the
victim “normally would not lie about something like that” was
improper.
¶ 23 In Venalonzo, the supreme court held that a mother’s
testimony that her child
11
did not display any signs that she was lying
when she reported the incident, that [the child]
was not sophisticated enough to make up a
story about the sexual assault, and that [the
child] had no reason to accuse [the defendant]
unless the incident had actually occurred . . .
amounted to testimony that [the child] was
telling the truth about the sexual assault.
Venalonzo, ¶ 39. Further, the court pointed to the prosecutor’s
statement (“you said that she wouldn’t accuse somebody of this”)
and question (whether the child’s “mind wasn’t sophisticated
enough to come up with this”) as eliciting the mother’s comments
on the child’s veracity in the case. Id. at ¶ 42. ¶ 24 In Cernazanu, a division of this court held that a mother’s testimony that her child did not display typical “lying” behavior when reporting a sexual assault necessarily implied to the jury that the victim was not lying, and thus, that she was telling the truth on that occasion.2015 COA 122
, ¶¶ 16-22.
¶ 25 Similar to those cases, Grandmother L’s comment that the
victim would normally not lie about something like “that” served no
other purpose than to convey to the jury Grandmother L’s belief
that the victim was not lying — and, consequently, that she was
telling the truth — on this occasion.
12
¶ 26 In so concluding, we necessarily reject the prosecution’s
argument that Grandmother L’s testimony was evidence of the
victim’s general character for truthfulness, which under CRE 608(a)
was admissible because Short’s defense attacked the victim’s
character for truthfulness. The evidence challenged on appeal was
not evidence of the victim’s general character for truthfulness but
rather “evidence of [the victim’s] specific veracity habit and its
application to a specific occasion.” Cernazanu, ¶ 23.
¶ 27 As noted earlier, because Short did not object to Grandmother
L’s testimony, reversal is not warranted in the absence of plain
error.
¶ 28 Plain error is error that is both “obvious and substantial.”
Hagos v. People, 2012 CO 63, ¶ 14. To qualify as plain error, the error must be so clear cut that a trial judge should have been able to avoid it without benefit of objection, People v. Pollard,2013 COA 31M
, ¶ 39, and it must be “seriously prejudicial” — that is, it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the defendant’s conviction. People v. Ujaama,2012 COA 36
, ¶ 43; see also Hagos, ¶ 14.
13
¶ 29 “The rule that a witness may not express an opinion as to the
credibility of another witness is both clear and long established.”
People v. Cook, 197 P.3d 269, 275-76 (Colo. App. 2008); see, e.g., People in Interest of G.E.S.,2016 COA 183
, ¶ 31 n.2 (“[T]his court
and the supreme court have long held that a witness may not vouch
for the credibility of another witness on a particular occasion[.]”).”
Although, in some circumstances, it is not always clear how the
rule applies, Relaford, ¶¶ 44-48 (sorting out permissible from
impermissible expert opinion on child behaviors), it is, in our view,
clear in this case. Thus, the “obvious” prong of the plain error
standard is met.
¶ 30 The issue, then, is whether the error in allowing Grandmother
L’s testimony was so “seriously prejudicial” as to warrant a new
trial. We conclude that it was not.
¶ 31 We note, in this respect, that (1) Grandmother L’s testimony
was very brief; (2) Grandmother L was not an expert, and thus, her
testimony did not have the imprimatur of expertise; (3) the
prosecution presented evidence (i.e., the victim’s vaginal redness
and swelling, behavioral changes, repeated urinary tract infections,
and incontinence; Short’s acknowledgment that somebody had
14
abused the victim; and the victim’s vehement reaction upon seeing
Short for the first time in over a year) corroborating the victim’s
allegations of sexual misconduct; and (4) the prosecution made no
reference to this part of Grandmother L’s testimony in closing
argument.
¶ 32 In light of these circumstances, the error here does not cast
serious doubt on the reliability of Short’s conviction; consequently,
there is no plain error warranting reversal. See People v. Gallegos,
644 P.2d 920, 927 (Colo. 1982) (improperly admitting investigating officer’s testimony “attesting to the accuracy or credibility of witness statements” did not constitute plain error where “the jury had an opportunity to evaluate the extensive testimony of the victim” at trial); see also People v. Eppens,979 P.2d 14
, 18 (Colo. 1999)
(finding a social worker’s testimony that she “felt that [the victim]
was sincere” did not rise to the level of plain error because the
social worker testified as a lay witness, the jury had “a full
opportunity to judge [the victim’s] credibility in light of her
demeanor,” and the victim’s testimony was corroborated by other
evidence); cf. Bridges, ¶ 21 (finding error was reversible because the
15
witness expressing the opinion was qualified as an expert witness
and there was no other corroboration of the victim’s allegations).
III. Short’s Exculpatory Statement
¶ 33 Short contends that the trial court erroneously compelled him
to forgo admitting an exculpatory part of a statement he gave to the
police by telling him that, if that part of the statement was
admitted, the prosecution would be permitted to expose the jury to
the fact that he had previously been convicted of a felony. Although
we agree, we nonetheless conclude that reversal is not warranted.
A. Facts
¶ 34 At trial, the prosecution presented evidence from Short’s
recorded interview with police. Through the testimony of a
detective, the prosecution introduced a statement made by Short in
which he agreed “someone’s abusing [the victim].” The prosecution
did not, however, propose to admit what Short had said
immediately thereafter: “[B]ut it ain’t me.”1
1In the trial court, defense counsel argued that Short had said, “I
did not. I swear to God.” Short did say this, but about sixteen
seconds after he said, “[B]ut it ain’t me,” and in response to the
detective’s accusation (that no one tried to admit) that the victim
said it was Short who “touched” her.
16
¶ 35 Short asserted that admitting the first part of the statement
without the second was “a complete misrepresentation” of what he
said during the interview, and that he was entitled to have the
second part admitted under the rule of completeness, CRE 106.
¶ 36 The trial court determined that the second part of the
statement could, as Short argued, come in under the rule of
completeness. However, the trial court also determined that
because the second part of the statement was self-serving hearsay,
if it was introduced by the defense, the prosecution would be
entitled to impeach it with evidence of Short’s previous felony
conviction. See CRE 806 (“When a hearsay statement . . . has been
admitted in evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by any evidence which
would be admissible for those purposes if declarant had testified as
a witness.”); see also § 13-90-101, C.R.S. 2017 (“In every case the
credibility of the witness may be drawn in question, as now
provided by law, but the conviction of any person for any felony
may be shown for the purpose of affecting the credibility of such
witness.”). Because of this ruling, Short did not attempt to admit
the second part of the statement.
17
B. The Trial Court Erred in Ruling that an Exculpatory Part of
Short’s Statement Was Admissible Subject to Impeachment
Under CRE 806
¶ 37 We review a trial court’s evidentiary ruling for an abuse of
discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). “A trial court abuses its discretion when its ruling is (1) manifestly arbitrary, unreasonable, or unfair or (2) based on an erroneous understanding or application of the law.” People v. Casias,2012 COA 117
, ¶ 17.
¶ 38 Here, we conclude that the trial court misunderstood or
misapplied the rule of completeness. The trial court correctly
recognized that the second part of Short’s statement qualified the
first, and, consequently, the second part could be considered as one
component of a larger, completed statement. But for purposes of
attributing who was the proponent of the evidence (and thus who
carried the evidentiary burdens associated with its admission), the
court divided the completed statement into two parts and held
Short responsible for the evidentiary “costs” of admitting the part
favoring him. This, we believe, was error. The proper course would
have been to inform the prosecution that it had a choice: admit (and
forfeit any objection to any pertinent part of) the completed
18
statement or admit no part of the statement at all. If the
prosecution had chosen to admit the completed statement, it could
not transfer onto Short the costs of admitting that part that was
favorable to him. The admission of the completed statement could
not, then, be made subject to a right in the prosecution to impeach
the part containing Short’s exculpatory statement.
¶ 39 At common law, the rule of completeness permitted the
introduction into evidence of a part of a statement to explain or put
into context another part of the statement that was (or was about to
be put) in evidence; the rule did not, however, extend to portions of
the statement that were irrelevant to the part of the statement that
was (or was about to be put) in evidence. See People v. DelGuidice,
199 Colo. 41, 47,606 P.2d 840
, 844-85 (1979) (relying on Camps v. N.Y.C. Transit Auth.,261 F.2d 320
, 322 (2d Cir. 1958)); see also United States v. Lanzon,639 F.3d 1293
, 1302 (11th Cir. 2011) (“[I]t is consistently held that the rule [of completeness] permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced.” (quoting United States v. Simms,385 F.3d 1347
, 1359 (11th Cir. 2004))); Diggs v. United States,28 A.3d 585
,
19
597 (D.C. 2011) (“The rule of completeness does not provide that
when part of an out-of-court statement is introduced against its
maker, the declarant has an automatic right to insist that other
parts be admitted too, simply because they are favorable to his
position. Rather, the rule contemplates that other parts of the
statement should be admitted, in the trial court’s discretion, ‘when
this is necessary to explain the admitted portion, to place it in
context, or to avoid misleading the trier of fact.’” (quoting Butler v.
United States, 614 A.2d 875, 882 (D.C. 1992))). ¶ 40 According to the supreme court, “[t]he common-law rule of completeness is codified in CRE 106.” People v. Melillo,25 P.3d 769
, 775 n.4 (Colo. 2001). CRE 106 provides that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” ¶ 41 Because CRE 106 is identical to Fed. R. Evid. 106, we consider federal cases and authorities concerning the federal rule highly persuasive in interpreting and applying our own. See, e.g., Faris v. Rothenberg,648 P.2d 1089
, 1091 n.1 (Colo. 1982) (“Fed. R. Civ. P.
20
63 is identical to C.R.C.P. 63. Thus, federal cases and authorities
interpreting the federal rule are highly persuasive.”); United Bank of
Denver Nat’l Ass’n v. Shavlik, 189 Colo. 280, 282,541 P.2d 317
,
318 (1975) (deeming the authority and commentators on Fed. R.
Civ. P. 14 to be persuasive because C.R.C.P. 14 is virtually
identical).
¶ 42 One commentator has aptly summarized Fed. R. Evid. 106
thusly:
Basically, the rule prevents a party from
achieving an unfair result by introducing all or
part of a writing or recording out of its context.
When the trial court finds that fairness
requires the admission of additional evidence,
the proponent must decide between allowing
all of the evidence to be admitted and
withdrawing the originally proffered portions.
....
The party who wants to complete the record is
entitled under the Rule to compel the offer of
the additional information at the time the
proponent offers the partial evidence, rather
than waiting until a later stage of the trial. . . .
As such, the rule reduces the risk that a
writing or recording will be taken out of
context and that this initial misleading
impression will take hold in the mind of the
jury. The opponent has discretion, of course,
to wait to offer the completing evidence until a
later point. But the rule recognizes that
21
sometimes waiting until later to put an unfair
presentation of harmful evidence in context is
just not good enough.
2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual
§ 106.02 (11th ed. 2015) (footnotes omitted); see also 1 Kenneth S.
Broun, McCormick on Evidence § 56 (7th ed. 2013) (recognizing that
Fed. R. Evid. 106 permits “the adversary . . . to require the
proponent to introduce both the part which the proponent desires
to introduce and other passages which are an essential part of its
context”); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 1:42 (4th ed. 2015) (“[S]ometimes the party who offers a
written or recorded statement (or part of one) may himself be
required in appropriate cases to present additional parts, rather
than leaving the task of providing necessary context to other
parties. In both cases, the aim is to prevent distortion and
consequent misleading.”).
¶ 43 What happens, though, when otherwise inadmissible evidence
is proffered as the means of satisfying the rule of completeness
embodied in Fed. R. Evid. 106? Some courts, including divisions of
this court, have held that the rule of completeness does not
authorize the admission of otherwise inadmissible evidence. See
22
People v. Davis, 218 P.3d 718, 731 (Colo. App. 2008) (“Under the rule of completeness, when one party introduces part of a written or recorded statement, the opposing party can introduce other parts of that statement. . . . However, self-serving hearsay declarations made by a defendant may be excluded because there is nothing to guarantee their trustworthiness.”); accord People v. Zubiate,2013 COA 69
, ¶ 33 (stating, in dicta, “[s]elf-serving hearsay declarations made by a defendant may be excluded under the rule of completeness because there is nothing to guarantee their trustworthiness”), aff’d,2017 CO 17
; see also United States v. Ford,761 F.3d 641
, 652 (6th Cir. 2014) (“[E]xculpatory hearsay may not come in solely on the basis of [the rule of] completeness.” (quoting United States v. Adams,722 F.3d 788
, 826 (6th Cir. 2013))); United States v. Ortega,203 F.3d 675
, 682 (9th Cir. 2000) (“Even if the rule of completeness did apply, exclusion of [the defendant’s] exculpatory statements was proper because these statements would still have constituted inadmissible hearsay.”), holding modified on other grounds by United States v. Larson,495 F.3d 1094
(9th Cir. 2007); United States v. Wilkerson,84 F.3d 692
, 696 (4th Cir. 1996)
23
(Rule 106 does not “render admissible the evidence which is
otherwise inadmissible under the hearsay rules.”).
¶ 44 But that position is not the uniform view. See, e.g., United
States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010) (A hearsay objection “does not block [information’s] use when it is needed to provide context for a statement already admitted.”); United States v. Bucci,525 F.3d 116
, 133 (1st Cir. 2008) (“[O]ur case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence.”); United States v. Sutton,801 F.2d 1346
, 1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously. A contrary construction raises the specter of distorted and misleading trials, and creates difficulties for both litigants and the trial court.”); United States v. LeFevour,798 F.2d 977
, 981 (7th Cir. 1986) (Under Rule 106, otherwise inadmissible evidence is admissible where it “is necessary to correct a misleading impression.”); State v. Sanchez,380 P.3d 375
, 383, 383 n.4 (Utah Ct. App. 2016) (noting the split
24
among federal and state courts over whether Rule 106 admits
otherwise inadmissible hearsay, and deciding that it does allow the
admission of such evidence), cert. granted, 390 P.3d 727 (Utah
2017).
¶ 45 Nor, according to a number of commentators, is the failure to
admit otherwise inadmissible evidence pursuant to the rule of
completeness the better view. For example, one commentator said:
A party should not be able to admit an
incomplete statement that gives an unfair
impression, and then object on hearsay
grounds to completing statements that would
rectify the unfairness.
The appropriate way to resolve the hearsay
issue is to hold that the party who offers an
incomplete statement or document forfeits any
hearsay objection to completing evidence that
is necessary to correct a misleading
impression. . . . [B]y introducing evidence in
an unfair and selective way, the proponent can
be deemed to waive its right to object to
hearsay that would be necessary to place that
evidence in proper context. It is up to the
proponent of the initial portion to decide
whether to forgo that portion, or to forgo the
hearsay objection to the remainder. Another
way to look at it is that when the proponent
offers evidence out of its necessary context,
any out-of-court statement that is clearly
necessary to place the evidence in proper
context is not hearsay at all; rather it is
25
admissible for the not-for-truth purpose of
providing context.
2 Saltzburg et al., § 106.02 (footnotes omitted); see also 1 Mueller &
Kirkpatrick, § 1:43 (“[H]earsay objections should not block use of a
related statement . . . when it is needed to provide context for
statements already admitted. Thus a statement should be
admissible if needed to provide context under Rule 106 and to
prevent misleading use of related statements even if the statement
would otherwise be excludable as hearsay . . . . ”); id. § 1:45 (“On request by the accused, the court should require a prosecutor who wants to offer parts of a confession to introduce at the same time not only the incriminating parts but also self-serving or exculpatory parts that should in fairness be heard and considered at the same time. If for any reason the prosecutor introduces less than all of it, in the process deleting self-serving or exculpatory remarks that the accused wishes to have heard by the trier of fact, the rule of completeness requires the court to receive the latter.”); Dale A. Nance, Verbal Completeness and Exclusionary Rules Under the Federal Rules of Evidence,75 Tex. L. Rev. 51
, 54 (1996) (“If a
proponent has evidence of the opponent’s admission, the proponent
26
may well be tempted to introduce the part of that admission that is
most damaging to the opponent, secure in the knowledge that the
opponent cannot respond. The completeness doctrine vitiates this
maneuver by assuring the introduction of all parts of the admission
that are demanded by the opponent and that affect the inferences
that may legitimately be drawn from the part of the utterance the
proponent has chosen to introduce. Thus, the completeness
doctrine serves a trumping function in that it trumps exclusionary
rules that would otherwise prevent the opponent’s response.”).
¶ 46 Persuaded by this latter group of authorities, we conclude that
the trial court properly determined that Short’s otherwise
inadmissible self-serving hearsay was admissible under the rule of
completeness to qualify, explain, or place into context the evidence
proffered by the prosecution. See Nance, 75 Tex. L. Rev. at 83
(“Neither fairness in administration nor the ascertainment of truth
is served by an interpretation of Rule 106 that would allow a
proponent to take matters out of context by choosing to omit
27
information in the knowledge that the opponent is prevented by an
exclusionary rule from presenting that which is omitted.”).2
¶ 47 The remaining question, though, is whether the court could
exact a “price” from Short under the rule of completeness for
admitting the exculpatory portions of his statement. In United
States v. Velasco, 953 F.2d 1467, 1473 n.5 (7th Cir. 1992), the Seventh Circuit Court of Appeals appeared to answer “yes,” or at least “yes” in a case where the defendant was trying, without having to take the stand himself, to “get[] the benefit of the statement that [he] ha[d] recanted.” Characterizing the defendant’s position there as “want[ing] to have his cake, eat it too, and not have to clean up the dishes afterwards,” the court said that Rule 806 was “not inapplicable.”Id. ¶ 48
One commentator has, however, espoused a contrary view:
If one views Rule 106 as creating a distinct
hearsay exception which the opponent is now
using to present his self-serving hearsay, then
Rule 806 allows the proponent to impeach. If,
2 Necessarily, then, we decline to follow the Davis division’s holding
to the contrary. See People v. Smoots, 2013 COA 152, ¶ 20 (stating that one division of the court of appeals is “not obligated to follow the precedent established by another division”), aff’d sub nom. Reyna-Abarca v. People,2017 CO 15
.
28
however, one views Rule 106 as controlling the
proponent’s use of party-opponent admissions,
admissible under Rules 801(d)(2)(A) and
801(d)(2)(B), then Rule 806 implicitly precludes
impeachment, because such admissions are
defined as nonhearsay in the Federal Rules.
The latter must be the right result because the
exercise of the completeness motion should
not subject the opponent to any impeachment
that would not have been allowed if the
proponent had presented the entirety of the
statement in the first place, as it was his duty
to do. The forced presentation theory of
completeness answers the question of how to
treat the resulting admission of the remainder.
Nance, 75 Tex. L. Rev. at 94-95 (footnotes omitted);id. at 96
(critiquing Velasco, saying its “dictum mistakes the nature of the
completeness doctrine, as well as the import of Rule 806: The
defendant should have been no more subject to impeachment than
he would have been had the government presented the relevant
whole of the post-arrest statement”); cf. 1 Mueller & Kirkpatrick,
§ 1:45 (requiring the prosecution to offer additional parts of a
statement at the outset “keeps the government from putting what
amounts to unfair pressure on the accused to take the witness
stand”).
¶ 49 In our opinion, this latter view is more in line with the
purposes of the rule of completeness codified in Rule 106, and,
29
accordingly, we adopt it. If the prosecution wants to admit part of a
statement, it ought, in fairness, to “pay the costs” of admitting it in
its (relevant) entirety under the rule of completeness. If it is not
willing to pay the costs, it should not be permitted to admit any
portion of the statement.
¶ 50 So far, we have been talking about Rule 106 and its
application without addressing the form of the statement at issue.
But by its terms, Rule 106 applies only to “writings or recorded
statements.” Short’s statement was not admitted in this form. It
was admitted through the oral testimony of a detective.
Nonetheless, following the lead of federal case law on the subject,
we conclude that Rule 106 principles also apply to the form of
evidence proffered by the prosecution here under CRE 611(a) —
which is substantively identical to Fed. R. Evid. 611(a).3 See, e.g.,
3 CRE 611(a) provides as follows:
(a) Control by Court. The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting
evidence so as to (1) make the interrogation
and presentation effective for the
ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.
30
Lopez-Medina, 596 F.3d at 734 (“While Rule 106 applies only to writings and recorded statements, we have held ‘the rule of completeness embodied in Rule 106 is “substantially applicable to oral testimony,” as well by virtue of Fed. R. Evid. 611(a) . . . .’” (quoting United States v. Zamudio,141 F.3d 1186
,1998 WL 166600
, at *5 (10th Cir. Apr. 6, 1998) (unpublished table decision))); United States v. Holden,557 F.3d 698
, 705 (6th Cir. 2009) (holding that the Rule 106 principle of completeness “has since been extended to oral statements through interpretation of Fed. R. Evid. 611(a),” and the two are now “equivalent”); United States v. Range,94 F.3d 614
, 621 (11th Cir. 1996) (Rule 611 “has been read to impose the same fairness standard [as under Rule 106] upon conversations.”); cf. State v. Cabrera-Pena,605 S.E.2d 522
, 525-26 (S.C. 2004) (finding that the common law of the state
extends the rule of completeness in Rule 106 to oral
communications).
¶ 51 The upshot of all this is that the trial court erroneously held
that the exculpatory parts of Short’s statement could be admitted,
subject to impeachment of Short (as the declarant) with his prior
conviction, under CRE 806. In light of the court’s erroneous ruling,
31
Short did not seek to have the exculpatory parts of his statement
admitted, and, consequently, the only evidence the jury heard, with
respect to his statement, was that he admitted “someone [was]
abusing” the victim.
C. The Error Was Harmless
¶ 52 Under Crim. P. 52(a), we are to disregard a harmless error.
But whether we can disregard a particular error as harmless
depends, in part, on (1) whether the error is classified as
constitutional or nonconstitutional in dimension and (2) whether
the error satisfies the appropriate harmless error test for
constitutional or nonconstitutional error. See Krutsinger v. People,
219 P.3d 1054, 1058 (Colo. 2009) (discussing the harmless error
tests for constitutional and nonconstitutional error).
¶ 53 For two reasons, we do not apply the harmless error test for
constitutional error:
(1) In Krutsinger, the supreme court recognized that not
“every erroneous evidentiary ruling . . . amounts to
federal constitutional error.” Id. at 1062. “[T]he
standard or test for assessing whether a defendant’s right
to . . . present a defense has been violated by evidentiary
32
rulings is clearly dependent upon the extent to which he
was permitted to subject the prosecutor’s case to
‘meaningful adversarial testing.’” Id. (quoting Crane v.
Kentucky, 476 U.S. 683, 691 (1986)). In the present
case, Short was permitted to subject the prosecution’s
case to “meaningful adversarial testing.” Consequently,
the trial court’s error was not of constitutional
dimension; and
(2) Short did not assert in the trial court that the court’s
rule of completeness ruling chilled his rights to present a
defense and to a fair trial. Consequently, these
constitutional issues have not been preserved for
appellate review. See People v. Gash, 165 P.3d 779, 781
(Colo. App. 2006) (holding evidentiary objection in the
trial court based on hearsay but not confrontation
grounds did not preserve alleged confrontation error for
review).
¶ 54 For these reasons, we apply the harmless error test for
nonconstitutional error. See, e.g., State v. Chavez, 189 Wash. App.
1047,2015 WL 5099540
, *7 (Aug. 31, 2015) (unpublished opinion)
33
(stating that error in precluding defendant from asking witness
about other parts of statement was not an error of constitutional
magnitude).4 Under the nonconstitutional harmless error test, the
defendant bears the burden of showing prejudice from the error.
Casias, ¶ 60. To obtain reversal, the defendant must establish a
reasonable probability that the court’s error contributed to his
conviction. See id. at ¶ 62. A “reasonable probability” does not mean that it is “more likely than not” that the error caused the defendant’s conviction; rather, it means only a probability sufficient to undermine confidence in the outcome of the case.Id. at ¶
63.
¶ 55 In assessing the prejudicial effect of evidentiary error,
an appellate court considers a number of
factors, namely, “the overall strength of the
state’s case, the impact of the improperly
admitted or excluded evidence on the trier of
fact, whether the proffered evidence was
cumulative, and the presence of other evidence
corroborating or contradicting the point for
which the evidence was offered.”
4 Ordinarily, unpreserved constitutional error would warrant relief
only if the error qualified as plain error, i.e., error that is “obvious”
and “so undermine[s] the basic fairness of the trial as to cast
serious doubt on the reliability of the judgment.” People v. Gash,
165 P.3d 779, 781-82 (Colo. App. 2006). The type of prejudice a defendant must show to demonstrate plain error is more onerous than that which he or she must demonstrate to show reversible nonconstitutional error. See Hagos v. People,2012 CO 63
.
34
Id. at ¶ 64 (quoting State v. Martin V.,926 A.2d 49
, 54 (Conn. App. Ct. 2007)). “‘[T]he single most important factor’ in a nonconstitutional harmless error inquiry is whether the case was ‘close.’”Id. at ¶
69 (quoting United States v. Ince,21 F.3d 576
, 584
(4th Cir. 1994)).
¶ 56 Initially, we note that we are usually confronted with
evidentiary error involving either the improper admission of
something into evidence or the improper exclusion of something
from the evidence. In the present case we are confronted with both.
Short’s statement that “someone’s abusing” the victim was
inadmissible absent compliance with the rule of completeness.
Conversely, Short was improperly inhibited from introducing
contextual evidence of a denial of wrongdoing on his part.
¶ 57 Short’s statement that “someone’s abusing her” was
essentially cumulative of other evidence indicating that the victim
had been abused. Besides the victim’s testimony that Short had
“touch[ed]” her “privates,” the victim had vaginal redness and
swelling, suffered urinary tract infections, and exhibited behavioral
35
changes, including regression in her toilet training,5 “dancing
provocatively,” making excuses to stay longer at Grandmother L’s
house, and crying when she had to return to Grandmother K’s
home where Short sometimes stayed. Defense counsel’s expert
testified that the victim’s urinary tract infections could be attributed
to sexual assault, and the victim’s significant behavioral changes
tended to corroborate the fact of a sexual assault. See Stevens v.
People, 796 P.2d 946, 956 (Colo. 1990) (recognizing that behavioral changes such as a child’s loss of toilet training, sexual knowledge that is new or atypical for the child, and inappropriate sexual behavior are corroborative of sexual assault allegations). ¶ 58 The bigger problem, as we see it, was the exclusion of Short’s denial of wrongdoing. Although this evidence would not have been admissible otherwise,6 its absence here allowed the prosecution to 5 Grandmother L testified that “[the victim] would wet her pants a lot” and that she began “pooping” in her pants. 6 See, e.g., People v. Abeyta,728 P.2d 327
, 331 (Colo. App. 1986)
(“Hearsay declarations made by a defendant in his own favor are
generally not admissible for the defense. A self-serving declaration
is excluded because there is nothing to guarantee its testimonial
truthworthiness. If such evidence were admissible, the door would
be thrown open to obvious abuse; an accused could create evidence
36
present a misleading picture (i.e., of someone who had admitted
knowing the victim had been abused but, apparently, had not
denied doing it himself).
¶ 59 In other circumstances, such a situation could warrant
reversal for a new trial. But not, we think, here. In the end, the
case against Short was strong, even aside from the misleading
statement that was entered into evidence. Short was shown to have
had access to the victim, and on occasion was alone with the victim,
around the time the victim’s relatives first began to suspect she was
being abused. The victim reacted violently upon seeing Short
unexpectedly for the first time in over a year, and she identified
Short as her abuser both in out-of-court statements and in her in-
court testimony. Because this was not a close case, the court’s
evidentiary error was not such as would undermine our confidence
in the verdict. Consequently, the error was harmless.
for himself by making exculpatory statements for subsequent use at
his trial.”).
37
IV. One Conviction and Sentence, Not Two
¶ 60 Short contends, the People concede, and we agree, that only
one judgment of conviction and sentence should have been imposed
in this case.
¶ 61 The trial court entered separate convictions and sentences for
both (1) sexual assault on a child and (2) sexual assault on a child-
pattern of abuse. The court sentenced Short to six years to life
imprisonment on the first count, and to nine years to life
imprisonment on the second count.
¶ 62 The number of convictions and sentences that could be
entered turns on whether the pattern of abuse count operated only
as a sentence enhancer or encompassed an additional substantive
offense as well. People v. Wiseman, 2017 COA 49M, ¶ 10. If the former was the case, then only one conviction with an enhanced sentence could be entered; if the latter was the case, then two convictions and sentences could be entered.Id. at ¶
11.
¶ 63 Here, the jury entered only one guilty verdict, finding Short
guilty of sexual assault–pattern of abuse. As the People concede,
the single verdict form does not support convictions for two
separate offenses for sexual assault and sexual assault-pattern of
38
abuse. Consequently, the pattern of abuse finding could act only as
a sentence enhancer. The separate conviction and sentence for
simple sexual assault must be vacated.
V. Conclusion
¶ 64 The judgment of conviction is affirmed in part and vacated in
part, and the case is remanded with directions to correct the
mittimus consistent with the views expressed in this opinion.
JUDGE HAWTHORNE concurs.
JUDGE WELLING specially concurs.
39
JUDGE WELLING, specially concurring.
¶ 65 I agree with the majority’s analysis and conclusions in Parts
II.B and II.C, as well as Parts III and IV. I also agree with the
majority’s ultimate disposition of the case. Where I respectfully part
ways with the majority, however, is its conclusion that admission of
certain portions of Chery Young’s testimony was not error. Because
I conclude that portions of Ms. Young’s testimony crossed the line
of permissible testimony, I write separately.
I. Background
¶ 66 Ms. Young was called by the prosecution and, without
objection, testified as an expert in
all aspects of child sexual assault and abuse and
interactions and reactions of child victims during the
sexual assault;
the patterns of disclosure and outcry statements of child
sexual assault and abuse victims;
the forensic protocol of child sexual abuse interviews;
the victim-offender relationship dynamics; and
the “process of memory.”
40
¶ 67 Ms. Young never treated, interviewed, or met A.P., the named
victim in the case. Instead, she testified as a so-called blind expert.
In this capacity she testified regarding the dynamics of sexual
assault disclosures by children generally, including how the nature,
timing, and details of such disclosures vary depending on a variety
of circumstances, such as the age of the child, the relationship with
the alleged perpetrator, and the stability of the child’s environment.
During her direct examination, Ms. Young answered questions
regarding the relationship between a child’s inconsistent
disclosures and his or her truthfulness and credibility. She also
responded to a pair of hypotheticals that closely tracked the facts of
this case. Short never objected during Ms. Young’s testimony.
II. Analysis
¶ 68 On appeal, Roger Lee Short contends that the trial court
committed plain error by permitting Ms. Young to bolster the
victim’s credibility and to explain away inconsistencies in her
disclosures.
¶ 69 Divisions of this court have repeatedly permitted the use of
blind experts in the context of prosecutions for sexual assaults on
children. See, e.g., People v. Relaford, 2016 COA 99, ¶¶ 16, 33;
41
People v. Whitman, 205 P.3d 371, 382-83 (Colo. App. 2007); People v. Mintz,165 P.3d 829
, 831-32 (Colo. App. 2007); People v. Morrison,985 P.2d 1
, 5-6 (Colo. App. 1999), aff’d,19 P.3d 668
(Colo. 2000). The rationale is that “[a]n expert may testify as to the typical demeanor and behavioral traits displayed by a sexually abused child.”Mintz, 165 P.3d at 831
; see alsoWhitman, 205 P.3d at 383
(“Background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children, and particularly of [young] children.” (quoting People v. Aldrich,849 P.2d 821
, 829 (Colo. App. 1992))). But even these experts “may not offer their direct opinion on a child victim’s truthfulness or their opinion on whether children tend to fabricate sexual abuse allegations.” People v. Wittrein,221 P.3d 1076
, 1081 (Colo. 2009). Nor may any witness testify that another witness told the truth on a particular occasion. CRE 608(a)(1); see alsoWittrein, 221 P.3d at 1081
(“In Colorado, neither lay nor expert witnesses may give opinion testimony that another witness was telling the truth on a specific occasion.”); People v. Eppens,979 P.2d 14
, 17-18 (Colo. 1999)
42
(collecting cases in support of the proposition that “[i]t is well
established that CRE 608(a)(1) does not permit a witness to offer an
opinion that a child was telling the truth on the specific occasion
that the child reported a particular sexual assault by a defendant”).
With these concepts in mind, I turn to two lines of inquiry of Ms.
Young that I find problematic.
A. Opinions on A.P.’s Credibility
¶ 70 Ms. Young was the sixth witness to testify at trial. By the time
she testified, the jury was aware that A.P. had given inconsistent
disclosures about what happened to her.
¶ 71 “[W]itnesses are prohibited from testifying that another
witness is telling the truth on a particular occasion.” Venalonzo v.
People, 2017 CO 9, ¶ 32 (citingWittrein, 221 P.3d at 1081
). “This rule applies to both direct and indirect implications of a child’s truthfulness.”Id. (citing Wittrein,
221 P.3d at 1082). The line
between permissible and impermissible testimony, however, is not
always clear. See Relaford, ¶ 40 (“[U]nder the existing case law, it is
not always clear (or even consistent among cases) where to draw the
line between expert testimony on the typical characteristics of
sexual assault victims that is permissible and that which is
43
impermissible because it is tantamount to an opinion that the
victim was telling the truth.”).
¶ 72 In my view, three of the questions posed to Ms. Young crossed
this line, as opaque as it may be. Those questions were:
Q. Are there portions in a child’s memory
where you, frankly, expect there to be some
inconsistencies?
....
Q. Ms. Young, is then inconsistency always
going to be a sign of some fabrication, of some
degree of untruthfulness on the part of the
child?
....
Q. Conversely, would you describe that
consistency between disclosures is always a
sign of credibility?
¶ 73 These questions had only one discernable purpose: to elicit an
opinion about the child victim’s credibility. They were calculated to
elicit an opinion that notwithstanding inconsistencies, A.P.’s
disclosures were credible. That is not the proper subject for expert
testimony. See CRE 608(a)(1); see also Venalonzo, ¶ 32 (holding
that CRE 608(a) “applies to both direct and indirect implications of
a child’s truthfulness”).
44
¶ 74 Venalonzo is instructive on this point. In Venalonzo, ¶ 7, the
forensic interviewer testified about, among other things, “whether
children typically say different things to the interviewer than they
do to responding officers or Department of Human Services
workers, or when testifying at trial.” The supreme court observed
that “[o]nce the interviewer began comparing [the victims in the
case] to other child sex assault victims — stating that children who
had been sexually assaulted commonly gave conflicting details —
her testimony had no proper purpose.” Id. at ¶ 36 (emphasis
added). Here, the questions were even more problematic, as the
prosecution’s questions invited the expert to draw a direct line
between the inconsistencies in a child’s disclosures and the child’s
credibility. This, in my view, is not a proper line of inquiry.
Accordingly, I conclude that it was error for the trial court to permit
these questions to be asked.
¶ 75 Short did not object to these questions, so we review for plain
error. See Relaford, ¶ 36. Even assuming the error was obvious, in
order to warrant reversal under a plain error standard, the error
must have “so undermined the fundamental fairness of the trial
itself so as to cast serious doubt on the reliability of the judgment of
45
conviction.” Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v. Miller,113 P.3d 743
, 750 (Colo. 2005)). I conclude that this
testimony does not meet this exacting standard.
¶ 76 Although invited to offer a definitive opinion on the victim’s
credibility by the prosecutor’s improper questions, Ms. Young did
not do so. Instead, each time she was asked about the relationship
between inconsistency, on the one hand, and credibility or
untruthfulness, on the other hand, she opined that inconsistency is
simply a factor that the jury should consider in assessing
credibility, not that it should be disregarded or that it doesn’t
matter. For example, in response to the first question, Ms. Young
responded:
Yes. I mean, and keep this in mind that
inconsistent statements don’t, necessarily,
don’t equal actually, fabrication. That
inconsistent statements can occur for a variety
of reasons. And the, the researchers that have
done quite a bit on suggestibility and
inconsistency, out of Cornell University, have
been very clear about that. That, of course, we
want to notice inconsistent statements. And we
want to understand the reason for them. But,
it would be a disservice to decide if a child
makes an inconsistent statement, that the
child is, therefore, not truthful.
(Emphasis added.)
46
¶ 77 She offered a similar explanation when asked whether
“inconsistency [is] always going to be a sign of some fabrication”:
Well -- no. It’s important to watch for
[inconsistency]. It’s important to understand
the dynamics behind it. But, then, it’s a
disservice to say if a child is inconsistent. I
think it’s important to explore why. And that
somebody is able to talk about how come when
you talked with this person and then when you
talk with me, it seems like you’re talking about
things that maybe only the [t]herapist, that
only I know about so far. Exploring that and
asking the child to explain how come they
haven’t been able to talk about that with other
people is important to know why. That, you
know, I don’t want to say they’re unimportant
at all. They’re just important to investigate.
(Emphasis added.)
¶ 78 She continued in a similar vein when asked whether
consistency is “always a sign of credibility”:
No. There are a few cases where it’s, usually,
high-conflict alienation. The child making an
allegation against a parent being coached by
another parent. Those children can make
these allegations that are very []rote, very
rehearsed. There’s a whole lot of other factors.
But, they can be very consistent, said exactly
the same way, answered the questions the
same way. That, also, can create a little bit of
a flag just as inconsistent statements can
create a yellow flag. That things are []rote and
rehearsed make us be a little bit concerned
about possible coaching at times. So, we want
47
to understand can the child discuss something
like they’re pulling it from actual memory. So,
it, what we call it is free-narrative. The ability
to talk about something while you’re thinking
about it as if you’re kind of describing it as it’s
happening. That free-narrative is what most
Forensic Interviewers are trying to get a child
to do. Because that means they’re retrieving
their memory.
And, and, and it, and you have to be careful
with these very narrow, rigid, []rote, rehearsed
allegation[s]. Particularly, if it’s happening in
high conflict of a divorce.
¶ 79 Ms. Young’s responses were similar to those given in Wittrein,
where our supreme court concluded that the error did not
necessitate reversal under a plain error standard. There, the expert
testified on cross-examination that she did not know with “one
hundred percent certainty” that the victim was telling the truth.
Wittrein, 221 P.3d at 1082. The supreme court concluded, based upon this, “the jury could not interpret her testimony as an opinion that [the victim] was telling the truth, and her response did not affect the fairness of the trial,” and, therefore, there was no plain error.Id. ¶ 80
Here, Ms. Young never told the jurors that they should
disregard inconsistency in assessing credibility. Instead, she told
48
them that inconsistency is one factor among many that they should
consider. In this regard, her testimony wasn’t all that different from
the stock jury instruction on credibility. See COLJI-Crim. E:05
(2017) (“Consider how the testimony of the witness is supported or
contradicted by other evidence in the case. You should consider all
facts and circumstances shown by the evidence when you evaluate
each witness’s testimony.”).
¶ 81 In short, although I conclude that the trial court erred in
permitting the three questions discussed above to be posed to Ms.
Young, based upon the answers she gave, I also conclude that the
admission of her testimony did not so undermine the fundamental
fairness of the trial itself so as to cast serious doubt on the
reliability of the judgment of conviction. Accordingly, I agree with
the majority that reversal is not warranted.
B. Misuse of Hypotheticals
¶ 82 Following A.P.’s initial outcry, she began to see a therapist.
A.P.’s grandmother was present for a portion of some of those
therapy sessions. A.P.’s grandmother testified that during one of
the therapy sessions she was present for, A.P. told her and the
therapist that Short had anally penetrated her with his finger and
49
that he made her dance naked for him. But at trial, A.P. testified
that Short had only touched her outside of her clothing and never
mentioned the allegation of naked dancing. By the time Ms. Young
took the stand, the jury had heard both the grandmother’s
testimony about what A.P. had told her at the therapist’s office and
A.P.’s testimony denying that Short had touched her inside of her
clothing and omitting any reference to naked dancing.
¶ 83 The prosecutor posed two carefully tailored hypotheticals to
Ms. Young:
[Prosecutor:] Let’s use an example. Say a child
in a clinical environment, meeting with a
[t]herapist that they now have a relationship
with, is able to disclose anal penetration; but
not able to do so in a courtroom. Would that
be surprising to you?
[Ms. Young:] No. Actually, that’s, those are the
cases, the couple of cases that I’ve had where
kids couldn’t testify to that. I think that is a
very, very difficult one for children to disclose
and to testify to. The other ones that are
difficult for children to disclose and testify to
are the things that they did. So, if they were
involved in a sexually abusive situation where
they performed some sort of sexual act, those
are much more difficult for them to talk about
than the sexual acts that were perpetrated
onto them. And [indiscernible] rectal or anal
penetration is a very difficult one for kids to
disclose and, and to testify to.
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[Prosecutor:] What about a disclosure about
naked dancing? Would that be the kind of
disclosure where the child’s involved in the
sexual act, but may have a difficult time
voicing that in the courtroom, although, not in
the clinical environment?
[Ms. Young:] That would be one of those,
because the behavior is theirs as compared to
the [o]ffender behaving towards them. That
would be a behavior like if you’re talking about
a sexual dance or dancing without clothes on
or something like that. Then, that goes back
to that greater shame and difficulty in things
that they have, actually, done. It’s harder to
discuss.
¶ 84 Short contends that the testimony elicited in response to these
carefully tailored hypotheticals constituted improper opinion
testimony that A.P. was telling the truth on a particular occasion.
Like the questions discussed in the previous section, Short did not
object to these questions either, so again we review for plain error.
The majority, persuaded by a pair of cases from our court,
concludes that there was nothing improper about these
hypotheticals. While I am not necessarily persuaded that those
cases were correctly decided, I would still conclude — based on the
same cases relied on by the majority — that if admission of this
testimony was error, it was not obvious.
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¶ 85 The two carefully tailored hypotheticals afforded Ms. Young
the opportunity to explain away a critical inconsistency between
A.P.’s outcry and her trial testimony. It is one thing for a blind
expert to explain generally how different settings can affect some
children’s comfort level and, in turn, their ability or willingness to
provide details of abuse. But it is quite another to tailor
hypotheticals to the facts of the particular case, and then ask the
expert whether under those particular circumstances it would
“surprise” her that a child would be unable to testify to those
particular details at trial even though she was able to discuss them
previously.
¶ 86 It would have been clearly improper for the prosecutor to ask
A.P.’s therapist whether she would have been “surprised” if A.P. was
not able to testify at trial to the abuse that she had disclosed to her
in therapy. See Venalonzo, ¶¶ 35-37. Such testimony, in my view,
would have been tantamount to vouching for the reliability of the
child’s out-of-court report over the child’s trial testimony. Thus, I
cannot see how it would be permissible. Cf. Eppens, 979 P.2d at 18
(holding that it was error to permit the social worker who
interviewed the child to testify that she felt that the child’s report
52
was “sincere”); Tevlin v. People, 715 P.2d 338, 341 (Colo. 1986) (holding that social worker’s testimony that he believed the child victim was telling the truth was improper because it failed to refer to the witness’ general character for truthfulness and instead went to the witness’ truthfulness on a specific occasion). In my view, laundering such an inquiry through a blind expert should not render it permissible. ¶ 87 Relying on Mintz and Morrison, the majority concludes that there was nothing improper about these hypotheticals. Supra ¶¶ 15-16. As the majority correctly notes, both of these opinions seem to authorize — or at least vest the trial court with broad discretion to permit — the use of closely tailored hypotheticals. SeeMorrison, 985 P.2d at 5
(approving a hypothetical question that “contained facts substantially identical to those disclosed by the evidence” on the basis that “[t]he expert’s opinion that such actions are typical of the method of empowerment used by young male victims was admissible under CRE 702 to explain that such accusations and later denials by such a victim are not necessarily unusual”);Mintz, 165 P.3d at 831
(“When testifying as to the typical
behavioral traits of an abused child, the expert may respond to
53
hypothetical questions involving the facts of the case at hand.”).
For the reasons discussed in the paragraph above, I am not
completely persuaded that the lines drawn in Mintz and Morrison
are the right ones.
¶ 88 But mere disagreement with Mintz and Morrison does not
necessarily support a conclusion that the trial court committed
plain error. “To qualify as ‘plain’ error, an error must be so clear-
cut, so obvious, that a trial judge should be able to avoid it without
benefit of objection.” People v. Pollard, 2013 COA 31M, ¶ 39 (citing People v. Beilke,232 P.3d 146
, 152 (Colo. App. 2009)). “For an error to be obvious, ‘the action challenged on appeal must contravene (1) a clear statutory command; (2) a well-settled legal principle; or (3) Colorado case law.’” People v. Stroud,2014 COA 58
, ¶ 33 (quoting Pollard, ¶ 40). ¶ 89 “[W]here there is no case law or statute concerning a trial court’s alleged error, we cannot conclude that the trial court’s decision constituted plain error because the error would not have been obvious.”Id. Here, not
only was there no settled authority
indicating that such hypotheticals were improper, the limited
authority supports a contrary conclusion. Thus, while I am not
54
convinced that the prosecution’s use of tailored hypotheticals was
proper, I cannot conclude that the error was obvious either. See
Relaford, ¶¶ 40-42 (declining to find obvious error on the admission
of expert testimony where the issue had not yet been decided by a
division of this court or our supreme court). For that reason, I
reach the same conclusion as the majority: reversal is not
warranted.
III. Conclusion
¶ 90 Because I agree with the majority opinion in all respects
except its assessment of Ms. Young’s testimony and because I
conclude that improper admission of portions of Ms. Young’s
testimony was not plain error, I too would affirm in part, vacate in
part, and remand the case with directions for the trial court to
correct the mittimus consistent with the views expressed in the
majority opinion.
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