v. Vanderpauye

     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
                                                          September 9, 2021

                               

No. 18CA0792, People v. Vanderpauye — Evidence — Hearsay
— Self-Serving Hearsay — Hearsay Exceptions — Excited
Utterance — Relevancy — Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion, or Waste of Time

     A division of the court of appeals holds that neither the

Colorado Rules of Evidence nor the precedents of the Colorado

Supreme Court establish a per se rule prohibiting the admission of

self-serving hearsay by a criminal defendant. Instead, a criminal

defendant’s self-serving hearsay is admissible, subject to the

principles contained in CRE 403, if, but only if, the statement

satisfies a hearsay-rule exception recognized in the Colorado Rules

of Evidence.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 18CA0792
Boulder County District Court No. 16CR425
Honorable Bruce Langer, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob Vanderpauye,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VI
                         Opinion by JUDGE BERGER
                       Richman and Welling, JJ., concur

                        Announced September 9, 2021


Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    The dispositive question raised in this appeal is whether

 Colorado law contains a rule that prohibits the admission of

 self-serving hearsay statements by a criminal defendant.

¶2    Defendant, Jacob Vanderpauye, appeals his conviction for

 sexual assault (victim physically helpless). During the alleged

 sexual assault, and immediately after the victim accused him of

 rape, Vanderpauye said to the victim: “I thought you said I could do

 anything to you.” The trial court excluded this statement based on

 its belief that Colorado law prohibits the admission of self-serving

 hearsay by criminal defendants, irrespective of whether the hearsay

 meets one or more of the exceptions contained in the Colorado

 Rules of Evidence. The trial court alternatively ruled that the

 statement was neither an excited utterance nor a statement of

 Vanderpauye’s then-existing state of mind.

¶3    We hold that neither the Colorado Rules of Evidence nor the

 precedents of the Colorado Supreme Court establish a per se rule

 prohibiting the admission of self-serving hearsay by a criminal

 defendant. Instead, a criminal defendant’s self-serving hearsay is

 admissible, subject to the principles contained in CRE 403, if, but




                                   1
 only if, the statement satisfies a hearsay-rule exception recognized

 in the Colorado Rules of Evidence.

¶4    Because Vanderpauye’s statement was admissible under one

 of the established hearsay exceptions contained in the Colorado

 Rules of Evidence, the trial court erred. This error was not

 harmless, so we reverse the conviction and remand the case for a

 new trial. We address some of Vanderpauye’s other claims of error

 because they are likely to recur on retrial.

                           I.    Background

¶5    Evidence admitted at trial permitted the jury to find the

 following facts. After a night of heavy drinking with friends, the

 victim went home with Vanderpauye, engaged in affectionate

 kissing, and fell asleep on Vanderpauye’s bed. When the victim

 woke up, Vanderpauye was on top of her, having sexual intercourse

 with her. The victim yelled, “[W]hat are you doing? You’re raping

 me.” The parties agree that, in response to this accusation,

 Vanderpauye said, “I thought you said I could do anything to you.”

 The victim pushed Vanderpauye off her, ran out of the apartment,

 and returned home.




                                    2
¶6    After she returned home, the victim told her friend that she

 had been raped. The victim slept for a few hours, and the next

 morning she told several other friends, her mother, and her aunt

 that she had been raped. Shortly afterward, she was examined by a

 sexual assault nurse examiner and she reported the alleged assault

 to the police.

¶7    The prosecution charged Vanderpauye with three counts:

        sexual assault (causing submission of the victim) under

          section 18-3-402(1)(a), C.R.S. 2020;

        sexual assault (incapable of appraising) under

          section 18-3-402(1)(b); and

        sexual assault (victim physically helpless) under

          section 18-3-402(1)(h).

¶8    The prosecution dismissed the sexual assault (causing

 submission of the victim) charge. The jury was unable to reach a

 verdict on the sexual assault (incapable of appraising) charge, and

 the prosecution dismissed it. The jury convicted Vanderpauye of

 sexual assault (victim physically helpless). The court sentenced

 Vanderpauye to sex offender intensive supervised probation for a

 term of twenty years to life.

                                    3
     II.   The Trial Court Reversibly Erred by Excluding Vanderpauye’s
                          Self-Serving Hearsay Statement

¶9         Vanderpauye argues that the trial court reversibly erred by

  refusing to admit his hearsay statement, “I thought you said I could

  do anything to you.” We agree.

                             A.   Additional Facts

¶ 10       The victim told the police that, immediately after she woke up

  and realized that Vanderpauye was having sexual intercourse with

  her, she accused him of raping her. She admitted that

  Vanderpauye immediately responded to her accusation by saying, “I

  thought you said I could do anything to you.”

¶ 11       Vanderpauye moved for an order permitting the jury to hear

  his statement. He argued that his statement was admissible

  because, although it was hearsay, it met two exceptions to the

  hearsay rule — the excited utterance exception in CRE 803(2) and

  the then-existing state of mind exception in CRE 803(3).

  Vanderpauye further argued that the second layer of his hearsay

  statement — the victim’s alleged statement “[you can] do anything

  to [me],” upon which his denial rested — was not being offered for

  the truth of the matter asserted. Instead, he argued that it was



                                       4
  admissible for the nonhearsay purpose of its effect on the listener to

  show his belief that the victim consented to sexual intercourse.

¶ 12   The trial court first ruled that the statement was inadmissible

  because it was self-serving hearsay:

            [T]he first threshold that I think I have to cross
            is whether or not it’s self-serving hearsay.

            ....

            And, obviously the concern is that defendants
            sometimes make things up and paint things in
            a color that’s more beneficial to them. And
            there’s abundant case law that self-serving
            hearsay is not admissible. It strikes me that
            this statement falls squarely within that area
            of concern.

¶ 13   Alternatively, the trial court ruled that the statement was

  neither an excited utterance nor a statement of Vanderpauye’s

  then-existing state of mind.

            If anything was startling to Mr. Vanderpauye,
            it was [the victim] either waking up and
            stopping him or for some other reason
            stopping him, but what was startling to him, it
            was not that statement. It was some other
            event that happened.

            Similarly, the state of mind that’s relevant to
            this case is not a state of mind at the time that
            he made that statement. It would be his state
            of mind at the time that he engaged in – began,
            I guess, engaging in this alleged sex act. . . .


                                    5
             So for all of those reasons, I’m going to find
             that the statement is not admissible.

¶ 14   At trial, the victim testified on direct examination that when

  she woke up, she “immediately said to [Vanderpauye], what are you

  doing? You’re raping me. I was passed out. You’re raping me.”

  She also testified that Vanderpauye “seemed very startled that I

  woke up” and that “[b]ased off his body language, he seemed

  surprised.” After this testimony, Vanderpauye renewed his proffer

  of his hearsay statement.

¶ 15   The trial court adhered to its prior ruling, stating that

             regardless of whether it’s an excited utterance
             or not, I still find it’s self-serving hearsay. . . .
             [T]he analysis that because it’s self-serving
             hearsay, it’s not inherently reliable, I think
             that that trumps the excited utterance
             exception if it is an excited utterance, but I’m
             not finding it is an excited utterance, so my
             ruling stands.

                B.    Preservation and Standard of Review

¶ 16   The parties agree that Vanderpauye preserved this claim. “We

  review a trial court’s evidentiary rulings for an abuse of discretion.”

  Campbell v. People, 

, ¶ 21. A court abuses its discretion

  when its decision is manifestly arbitrary, unreasonable, or unfair,

  or if it misapplies the law. People v. Baker, 

.


                                       6
       C.    The Colorado Rules of Evidence Govern the Admissibility of
                               Self-Serving Hearsay

¶ 17        Hearsay is a “statement other than one made by the declarant

  while testifying at the trial or hearing, offered in evidence to prove

  the truth of the matter asserted.” CRE 801(c). Hearsay is not

  admissible “except as provided by [the Colorado Rules of Evidence]

  or by the civil and criminal procedural rules applicable to the courts

  of Colorado or by any statutes of the State of Colorado.” CRE 802.

¶ 18        In People v. Cunningham, the Colorado Supreme Court held, in

  the context of an admission against interest, that “[h]earsay

  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

  trustworthiness.’” 

, 

  (1977) (quoting 2 Charles E. Torcia, Wharton’s Criminal Evidence

  § 303, at 97-98 (13th ed. 1972)).

¶ 19        In Cunningham, the defendant was charged with murder and

  kidnapping. Id. at 200, 

. He sought to admit his

  hearsay statement that admitted involvement in the kidnapping but

  denied involvement in the murder. 

, 

.



                                       7
  The supreme court upheld the trial court’s exclusion of the

  statement, concluding that “its primary purpose, both when made

  and when offered on the defendant’s behalf at trial, was to attempt

  to shift blame to others, and to deny any involvement in the

  murder.” 

¶ 20   Based on Cunningham and later court of appeals decisions

  following it, the Attorney General argues that “a defendant’s

  self-serving hearsay declarations should be excluded when there is

  nothing to guarantee trustworthiness.” We reject the Attorney

  General’s position for several reasons.

¶ 21   First, the Colorado Rules of Evidence, promulgated by the

  supreme court after it decided Cunningham, do not contain any rule

  against the admission of self-serving hearsay by a criminal

  defendant.1 “When the Colorado Supreme Court exercises its

  constitutional authority and adopts a rule of procedure or evidence

  that conflicts with an earlier opinion of that court, the later




  1Cunningham was decided in 1977. The Colorado Rules of
  Evidence became effective on January 1, 1980. See People v.
  Ramirez, 

 (Colo. 2007).

                                     8
  precedent or rule controls, not the former.” People v. Gonzales,

  

, aff’d, 

.

¶ 22   Second, in a case decided after both Cunningham and the

  effective date of the Colorado Rules of Evidence, the supreme court

  authorized the admission of a self-serving hearsay statement by a

  criminal defendant, without subjecting the statement to the

  purported rule against the admission of self-serving hearsay. King

  v. People, 

 (Colo. 1990).

¶ 23   In King, the defendant moved to admit hearsay statements

  that he made to his psychiatrist. 

. The trial court did not

  consider whether the statements were admissible under CRE 803(4)

  as statements for the purposes of diagnosis and treatment, instead

  ruling that the statements were inadmissible because they were

  self-serving. 

 Without addressing the purported rule against the

  admission of self-serving hearsay, the supreme court held that the

  proffered statement met the requirements of CRE 803(4) and was

  therefore admissible. 

. The court reasoned that the

  hearsay exceptions in CRE 803 were themselves predicated on

  considerations of trustworthiness, so if a hearsay statement met the




                                    9
  requirements of the exception, it was admissible “without regard to

  any independent demonstration of trustworthiness.” 

¶ 24   This court’s opinion in People v. Pack, 

  (Colo. App. 1990), is consistent both with King and with our

  analysis here. There, a division of this court held that a criminal

  defendant’s excited utterance was admissible under CRE 803(2)

  notwithstanding that it was a self-serving statement. Pack, 

. It distinguished Cunningham on the basis that the

  defendant there did not argue that his statement was admissible as

  an excited utterance under CRE 803(2).2 Pack, 

.

¶ 25   We acknowledge that supreme court case law explains that the

  self-serving nature of a statement against interest is relevant to the

  admissibility analysis under CRE 804(b)(3).3 See Nicholls v. People,



  2 To the extent that other divisions of this court have cited
  Cunningham for the proposition that self-serving hearsay is
  inadmissible even if it fits within an exception recognized by the
  Colorado Rules of Evidence, they have done so without much
  analysis. See, e.g., People v. Abeyta, 

 (Colo. App.
  1986). More importantly, those cases are inconsistent with the
  most recent supreme court case law, and we decline to follow them.
  We are not bound by the decision of another division of this court.
  Campbell v. People, 

.
  3 An inculpatory statement by a criminal defendant is not hearsay

  at all under CRE 801(d).

                                    10
  

. But nothing in Nicholls, or other supreme

  court precedent decided after the promulgation of the Colorado

  Rules of Evidence, creates an independent impediment to the

  admission of self-serving hearsay. See King, 

.

¶ 26   A review of case law from other jurisdictions supports our

  analysis. A majority of other state courts have concluded that “no

  general rule of evidence excludes statements merely because they

  are self[-]serving.” State v. Vandenburg, No. M2017-01882-CCA-R3-

  CD, 

, at *46 (Tenn. Crim. App. Aug. 8, 2019)

  (citation omitted) (appeal denied Jan. 15, 2020); see also Williams v.

  State, 

 (Okla. Crim. App. 1996); Swain v.

  Citizens & S. Bank of Albany, 

 (Ga. 1988)

  (“‘[S]elf-serving’ does not describe an independent ground of

  objection.”) (citation omitted). But see Calloway v. State, 

 (Fla. 2017) (holding that self-serving hearsay

  statements are generally inadmissible subject to the rule of

  completeness).

¶ 27   The United States Court of Appeals for the Seventh Circuit has

  further explained that “a flat rule of exclusion of declarations of a

  party on the grounds that they may be described as ‘self-serving’


                                    11
  even though otherwise free from objection under the hearsay rule

  and its exceptions, detracts from the fund of relevant information

  which should be available to the jury.” United States v. Dellinger,

  

 (7th Cir. 1972).

¶ 28   Learned treatises also support our analysis. One treatise has

  recognized that “[i]f a statement with a self-serving aspect falls

  within an exception to the hearsay rule, the judgment underlying

  the exception that the assurances of trustworthiness outweigh the

  dangers inherent in hearsay should be taken as controlling, and the

  declaration should be admitted despite its self-serving aspects.” 2

  Kenneth S. Broun et al., McCormick on Evidence § 270, Westlaw

  (8th ed. database updated Jan. 2020). Discussing self-serving

  statements that meet the requirements of Fed. R. Evid. 803(3),

  another treatise explains that concerns about candor alone do not

  justify excluding such statements because “the possibility that

  factfinders will be misled, or fail to appreciate the possibility that

  they are false or exaggerated, seems remote.” 4 Christopher B.

  Mueller & Laird C. Kirkpatrick, Federal Evidence §§ 8:70-8:71,

  Westlaw (4th ed. database updated May 2021).




                                     12
¶ 29   For these reasons, we conclude that Colorado law does not

  contain any bar, separate from the provisions of the Colorado Rules

  of Evidence, to the admission of self-serving hearsay statements by

  a criminal defendant. Accordingly, if the proffered statement meets

  an exception to the hearsay rule, it may be admitted, subject to the

  provisions of CRE 403.4 It follows that the trial court erred as a

  matter of law when it relied on this nonexistent evidentiary rule to

  exclude Vanderpauye’s self-serving statement.

¶ 30   That conclusion, however, does not end our inquiry. The

  question remains whether Vanderpauye’s statement was admissible

  under the Colorado Rules of Evidence. On this record, the answer

  is yes.




  4 The substance of the statement, including any self-serving nature,
  could be a proper factor for a trial court to consider in exercising its
  discretion to exclude such a statement under CRE 403. But the
  self-serving nature of the hearsay statement is not sufficient, by
  itself, to justify exclusion. Cf. People v. Melendez, 

 (Colo. 2004) (recognizing that the exclusion of cumulative
  evidence that would have “materially assisted” the defendant’s case
  could violate the defendant’s constitutional right to present a
  defense).

                                     13
       D.   Vanderpauye’s Hearsay Statement was Admissible as an
                    Excited Utterance Under CRE 803(2)

¶ 31    An excited utterance is a “statement relating to a startling

  event or condition made while the declarant was under the stress of

  excitement caused by the event or condition.” CRE 803(2). There

  are three requirements for admissibility under this exception:

             (1) the event must be sufficiently startling to
             render normal reflective thought processes of
             the observer inoperative; (2) the statement
             must be a spontaneous reaction to the
             occurrence; and (3) direct or circumstantial
             evidence must exist to allow the jury to infer
             that the declarant had the opportunity to
             observe the startling event.

  People v. Martinez, 

 (Colo. App. 2003).

¶ 32    Under the first requirement for the admission of an excited

  utterance, the event that triggers the hearsay statement — not the

  statement itself — must be startling. The trial court ruled that

  Vanderpauye’s statement was not an excited utterance because “[i]f

  anything was startling to Mr. Vanderpauye, it was [the victim] either

  waking up and stopping him or for some other reason stopping him,

  but what was startling to him, it was not that statement.” To the

  extent the trial court ruled that Vanderpauye’s statement was not

  an excited utterance because the statement itself was not startling,


                                    14
  the trial court misapplied the law. A trial court necessarily abuses

  its discretion if its ruling is based on an erroneous view of the law.

  People v. Voth, 

.

¶ 33   If, instead, the court was referring to the victim’s statement,

  we reject the court’s conclusion that the victim’s accusation of rape

  was not startling. The Attorney General argues that Vanderpauye’s

  word choice suggests a considered and self-serving planned

  response. However, the victim herself testified that Vanderpauye

  seemed startled and surprised when she woke up and accused him

  of raping her. This established that the event was sufficiently

  startling to render inoperative Vanderpauye’s normal reflective

  thought process for purposes of admission under CRE 803(2). (Of

  course, whether Vanderpauye’s statement was credible or was made

  solely to exculpate himself was exclusively for the jury to determine.

  See People v. Gonzales, 

 (Colo. 1983).)

¶ 34   The victim’s own statement to the police that Vanderpauye

  immediately responded to her accusation by saying, “I thought you

  said I could do anything to you” established that the statement was

  a spontaneous reaction to the event. Finally, the undisputed

  evidence established that Vanderpauye observed the startling event


                                    15
  of the victim waking up and accusing him of rape. Accordingly, the

  record establishes that all requirements for the admission of an

  excited utterance were satisfied.5 The trial court abused its

  discretion by concluding otherwise.6

         E.    The Victim’s Alleged Statement Contained Within
              Vanderpauye’s Excited Utterance Was Not Hearsay

¶ 35   The Attorney General argues that Vanderpauye’s statement

  was nonetheless inadmissible because it contained a second layer

  of hearsay — the victim’s alleged statement “[you can] do anything

  to [me].” We reject this argument because the victim’s alleged

  statement was not hearsay.

¶ 36   Words that carry legal consequences or logical significance

  independent of the assertive content of the words are not hearsay.

  4 Mueller & Kirkpatrick, § 8:18. In a related context, the United


  5 Because we conclude that this statement met the requirements for
  admission as an excited utterance under CRE 803(2), it is
  unnecessary for us to analyze whether it also was admissible as a
  statement of Vanderpauye’s then-existing state of mind under CRE
  803(3).
  6 The rule of completeness codified in CRE 106 might provide an

  independent basis for the admission of Vanderpauye’s statement.
  But Vanderpauye did not, either in the trial court or here, make
  that argument. Respecting the party presentation principle, we do
  not further address the rule of completeness. See Galvan v. People,
  

.

                                   16
  States Court of Appeals for the Seventh Circuit held that statements

  that a defendant consented to a search of her person or belongings

  were admissible nonhearsay because the statements had legal

  significance independent of the assertive content of the words.

  United States v. Moreno, 

 (7th Cir. 2000); see also

  State v. Cotton, 

 (Kan. Ct. App. 2015) (per curiam)

  (unpublished table decision).

¶ 37   We likewise conclude that in a prosecution for sexual assault,

  at least under section 18-3-402(1)(h) where one of the elements of

  the offense is that the victim did not consent, statements that grant

  or withhold consent to sexual intercourse are legally significant

  independent of the assertive content of the words.7 Accordingly, the

  victim’s alleged statement “[you can] do anything to [me]” was

  admissible as nonhearsay because it had independent legal

  significance apart from the truth of the matter asserted.




  7 We note that lack of consent is not an element of other types of
  sexual assault. See § 18-3-402(1)(a), (b), C.R.S. 2020. But under
  the plain language of section 18-3-402(1)(h), lack of consent is an
  element that the prosecution must prove beyond a reasonable
  doubt.

                                   17
                    F.   The Error was Not Harmless

¶ 38    We next address whether the error requires reversal. On this

  record, we hold that it does.

¶ 39    We review nonconstitutional trial errors that were preserved by

  objection for harmless error. Hagos v. People, 

.

  On harmless error review, we “will reverse the judgment of

  conviction if there is a reasonable probability that any error by the

  trial court contributed to [the defendant’s] conviction.” People v.

  Monroe, 

. Whether an error is harmless depends

  on “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.” People v. Casias, 

  (quoting State v. Martin V., 

 (Conn. App. Ct. 2007)).

   1.    The Prosecution was Required to Prove Beyond a Reasonable
                  Doubt that the Victim Had Not Consented

¶ 40    The Attorney General argues that any error in refusing to

  admit this evidence was harmless because Vanderpauye’s

  “statement that [the victim] said he could do whatever he wanted to



                                    18
  her at some point before she fell asleep, did not, on its own terms,

  establish that she consented to intercourse when she was asleep.”

  This argument misses the mark.

¶ 41    Vanderpauye was convicted of sexual assault (victim

  physically helpless) under section 18-3-402(1)(h). To convict a

  defendant of sexual assault under this subsection, the prosecution

  must prove the following elements beyond a reasonable doubt:

           “The victim is physically helpless”; and

           “the actor knows the victim is physically helpless”; and

           “the victim has not consented.”

  

¶ 42    Because the victim’s lack of consent is an element of the

  charge for which Vanderpauye was convicted, whether the victim

  consented to sexual intercourse, the extent and substance of that

  consent, and whether the victim was, in fact, asleep during the

  incident were all critical factual determinations for the jury. See

  Dunton v. People, 

 (Colo. 1995). Vanderpauye’s

  statement was directly relevant to these factual determinations.




                                    19
                         2.   Misleading Silence

¶ 43   The exclusion of Vanderpauye’s statement was harmful for an

  additional and independent reason. The trial court permitted the

  victim to testify that she accused Vanderpauye of raping her but

  prohibited the jury from hearing that Vanderpauye immediately

  denied the accusation. This omission created the misleading

  impression that Vanderpauye was silent in the face of an

  accusation of criminal conduct and was therefore guilty.

¶ 44   The United States Supreme Court has recognized that

  “[s]ilence gains more probative weight where it persists in the face of

  accusation, since it is assumed in such circumstances that the

  accused would be more likely than not to dispute an untrue

  accusation.” United States v. Hale, 

 (1975). The

  Colorado Supreme Court likewise has recognized that the “failure to

  deny an accusation, when the statement is heard and understood

  by an accused and could have been denied by him without

  emotional or physical impediment, is admissible as an adoptive

  admission.” People v. Quintana, 

 (Colo. 1983).

¶ 45   In People v. Short, this court recognized that the exclusion of a

  defendant’s denial of wrongdoing allowed the prosecution to present


                                    20
  a misleading picture and could warrant reversal for a new trial.

  

.

¶ 46   Despite this misleading impression, the Attorney General

  argues that any error was harmless because Vanderpauye’s

  statement, “I thought you said I could do anything to you,” was

  cumulative of the evidence that the victim had abrasions on her

  knees. This argument distorts the definition of cumulative.

¶ 47   Evidence that is “decidedly different in character and impact”

  is not cumulative. People v. Genrich, 

, ¶ 117

  (Berger, J., specially concurring).

¶ 48   True, Vanderpauye argued that the physical evidence of the

  abrasions to the victim’s knees supported his defense of consent

  because that type of injury was more consistent with consensual

  sexual behavior. However, this circumstantial evidence of consent

  was “decidedly different in character and impact” than

  Vanderpauye’s statement, which was direct evidence of consent.

  Accordingly, the omitted evidence was not cumulative. Even if this

  evidence were cumulative, the supreme court has held that

  evidence, even cumulative evidence, that “may corroborate the




                                        21
  defendant’s own statement should ordinarily be admitted.” People

  v. Melendez, 

 (Colo. 2004).

¶ 49   We also reject the Attorney General’s argument that the “jury

  would not have credited [Vanderpauye’s] self-serving hearsay

  statement.” Maybe so. But the “determination of the credibility of

  witnesses is solely within the province of the jury.” Gonzales, 

. We cannot say what weight the jury would have given

  the evidence. Viewing the evidence as a whole, there is a

  reasonable probability that Vanderpauye’s statement could have

  affected the jury’s verdict.

¶ 50   For all these reasons, we reverse the judgment of conviction

  and remand for a new trial.

                   III.   Errors Likely to Recur on Retrial

¶ 51   Although we reverse based upon the trial court’s erroneous

  exclusion of Vanderpauye’s hearsay statement, we address

  Vanderpauye’s other claims of error to the extent they are likely to

  arise on retrial.8


  8We don’t address whether the trial court erred by excluding blood
  alcohol extrapolation testimony because the principal basis for its
  exclusion — that Vanderpauye violated Crim. P. 16’s expert


                                      22
                      A.   Cold Expert Testimony9

¶ 52    Vanderpauye challenges the trial court’s admission of cold

  expert testimony about sexual assault dynamics.

       1.   The Trial Court Did Not Abuse its Discretion by Denying
                 Vanderpauye’s Request for a Shreck Hearing

¶ 53    Vanderpauye argues that he was entitled to a Shreck hearing

  to determine whether Jean McAllister’s proposed testimony was

  reliable. We disagree.

¶ 54    Vanderpauye requested a hearing under People v. Shreck, 

 (Colo. 2001), regarding the endorsed cold expert. The

  trial court made the necessary CRE 702 findings without a hearing.




  disclosure requirements — presumably will not recur at a retrial.
  We likewise decline to address Vanderpauye’s argument that the
  trial court reversibly erred by allowing multiple witnesses to recount
  the victim’s account of the incident and emotional reaction because
  on retrial Vanderpauye’s hearsay statement will likely be admitted,
  and we are confident that the trial court will properly exercise its
  discretion under CRE 403.
  9 In People v. Cooper, 

 (cert. granted Mar. 2, 2020),

  a division of this court defined the term “blind expert” as
  synonymous with the term “cold expert.” Most of the published
  cases addressing this concept and virtually all law review articles
  addressing the concept use the term “blind expert.” However, the
  term “blind expert” is neither particularly nor accurately descriptive
  of the concept. Some may find the term to be offensive. As a result,
  we use the term “cold expert” throughout this opinion.

                                   23
¶ 55   The trial court’s decision to hold or dispense with a Shreck

  hearing is reviewed for an abuse of discretion. People v. Rector, 

 (Colo. 2011). A court abuses its discretion when

  its decision is manifestly arbitrary, unreasonable, or unfair, or if it

  misapplies the law. Baker, ¶ 29. A trial court need not hold a

  Shreck hearing “provided it has before it sufficient information to

  make specific findings under CRE 403 and CRE 702 about the

  reliability of the scientific principles involved, the expert’s

  qualification to testify to such matters, the helpfulness to the jury,

  and potential prejudice.” Rector, 

.

¶ 56   The trial court’s denial of Vanderpauye’s request for a Shreck

  hearing was based on Vanderpauye’s motion, the prosecution’s

  response, and an amended expert endorsement (which included the

  expert’s curriculum vitae and an amended summary expert report).

¶ 57   Numerous Colorado appellate courts have recognized the value

  and upheld the reliability of cold expert testimony regarding the

  nonintuitive reactions of victims in sexual assault cases. See, e.g.,

  Venalonzo v. People, 

. Therefore, the trial

  court did not abuse its discretion in refusing a Shreck hearing on

  the question of whether such evidence was sufficiently reliable.


                                      24
  2.   Cold Expert Testimony that Sexual Assault is Not a Mistake or
             a Miscommunication Must be Excluded on Retrial

¶ 58   Vanderpauye also argues that the entirety of McAllister’s

  testimony was irrelevant, was unfairly prejudicial, and should have

  been excluded.

¶ 59   Relevant cold expert testimony gives jurors information

  necessary to understand what might otherwise seem to be

  counterintuitive actions by the victims of sexual assaults. People v.

  Relaford, 

. But there are two substantial risks

  associated with the admission of cold expert testimony. People v.

  Cooper, 

 (cert. granted Mar. 2, 2020).

¶ 60   The first is that “most, if not all, expert testimony has the

  tendency to bolster the credibility of one or more witnesses.” Id.;

  Venalonzo, ¶¶ 32, 36. While expert testimony “may incidentally give

  rise to an inference that a victim is or is not telling 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, 

 (Colo. App. 1986). Nonetheless,

  witnesses may not directly or indirectly testify about the



                                     25
  truthfulness of another witness. See People v. Wittrein, 

 (Colo. 2009).

¶ 61   The second risk is that “the jury may find or infer that

  historical facts existed based solely on the expert’s testimony,

  rather than on the historical evidence presented to the jury.”

  Cooper, ¶ 21. Accordingly, “expert testimony is only admissible

  when the proffered testimony ‘fits’ the factual issues involved in the

  case.” 

 at ¶ 25 (quoting People v. Martinez, 

  (Colo. 2003)).

¶ 62   Here, the cold expert testified that it was a “myth” that “sexual

  assault is somehow a mistake or miscommunication.” This

  testimony went well beyond opinions regarding the typical

  responses of sexual assault victims.

¶ 63   This opinion must be excluded if again offered on retrial for

  two reasons. First, the statement appears to be demonstrably

  untrue. There are obvious circumstances when a defendant is

  criminally liable for sexual assault resulting from a

  miscommunication. For example, sexual intercourse with a person

  under the age of consent constitutes a crime regardless of whether




                                    26
  the defendant knew that the victim was under the age of consent.

  See § 18-3-402(1)(d).

¶ 64    Second, as we see it, the only purpose of the expert’s opinion

  in this regard was to buttress the credibility of the victim, an

  improper basis for the admission of expert testimony. See Wittrein,

  

.

¶ 65    On retrial, the court must, on timely objection, limit the expert

  testimony to opinions that do not improperly bolster the credibility

  of any witness and that “fit” the facts supported by evidence

  admitted at trial.

       B.   The Trial Court Did Not Abuse its Discretion by Refusing
               Vanderpauye’s Tendered Intoxication Instruction

¶ 66    Vanderpauye argues that the trial court reversibly erred by

  refusing to give his tendered intoxication instruction. We disagree.

¶ 67    Defense counsel tendered the following instruction:

              The court admitted certain evidence for a
              limited purpose.

              In this case evidence of [the victim]’s
              intoxication has been admitted for the purpose
              of her credibility and ability to make
              observations.

              The prosecution has not and is not alleging
              that [the victim] was physically helpless or


                                    27
             incapable of appraising the nature of her own
             conduct due to intoxication.

             You are instructed that you cannot consider
             evidence of [the victim]’s intoxication except for
             the limited purpose described above.

  The trial court refused to give the tendered instruction.

¶ 68   A trial court has substantial discretion in formulating jury

  instructions if “they are correct statements of the law and fairly and

  adequately cover the issues presented.” People v. Nerud, 

 (quoting People v. Gallegos, 

 (Colo.

  App. 2009)). “[A] trial court may refuse an instruction if it is

  argumentative, unduly emphasizes particular evidence, or contains

  statements not supported by the evidence.” People v. Baird, 

 (Colo. App. 2002). We review a trial court’s decision to

  give, or not to give, a particular jury instruction for an abuse of

  discretion. Day v. Johnson, 

 (Colo. 2011).

¶ 69   The trial court correctly instructed the jury on the elements of

  the offenses. Moreover, the tendered instruction was argumentative




                                     28
  and confusing. Therefore, the trial court did not abuse its

  discretion by refusing Vanderpauye’s tendered instruction.10

          C.   Evidence that Vanderpauye Lied About His Age

¶ 70   Vanderpauye contends that evidence that he lied about his age

  was irrelevant. We don’t address this contention because on retrial

  Vanderpauye’s hearsay statement will likely be admitted, bringing

  CRE 806 into play regarding impeachment.

                         IV.        Cumulative Error

¶ 71   Because we have determined that the exclusion of

  Vanderpauye’s statement constituted reversible error, we need not

  and do not consider his argument of cumulative error.

                               V.     Conclusion

¶ 72   The judgment of conviction is reversed, and the case is

  remanded for a new trial.

       JUDGE RICHMAN and JUDGE WELLING concur.




  10Vanderpauye’s argument that this instruction was a theory of the
  case instruction was raised for the first time in the reply brief. We
  do not address issues raised for the first time in a reply brief.
  People v. Plemmons, 

, ¶ 9 n.1. Accordingly, we do not
  address this argument.

                                        29