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This Opinion is subject to revision upon final publication.
Larimer County District Court No. 08CR303. Honorable Jolene Carman Blair, Judge.
John W. Suthers, Attorney General, Katharine Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
[¶1] Defendant, Edward Peter Conyac, appeals the judgment of conviction entered on jury verdicts finding him guilty of three counts of incest, three counts of sexual assault on a child -- position of trust, and one count of sexual assault on a child -- position of trust pattern of abuse, all concerning his stepdaughter, KT. He also appeals his habitual criminal adjudication. We affirm.
[¶2] KT informed her mother, LC, that defendant, her stepfather, had molested her. KT told the police and a forensic interviewer that defendant had vaginally and anally assaulted her three times between 2006 and 2008 at three different residences where the family had lived.
[¶3] During a police interview, defendant confessed to " four or five" incidents of sexual assault, but asserted that KT had initiated it. Defendant's confession mirrored KT's factual allegations concerning the three different residences where the abuse had occurred and the intercourse positions, and in several other particulars discussed below.
[¶4] Several days after KT's outcry, Dr. Crawford, a pediatrician who specialized in sexual assault examinations, examined KT. Dr. Crawford's report stated that the examination revealed no abnormalities, but also noted that the lack of findings did not necessarily mean that the sexual assaults did not happen.
[¶5] By the time of trial, defendant had recanted his confession. He contended that KT had fabricated the allegations because she desired to exclude defendant, the household disciplinarian, from the home. Defendant presented evidence that one of KT's friends had confided to KT that she was being abused and that KT was in a sexual education class at school. He argued that KT knew how to make a sexual assault allegation and the consequences of doing so.
[¶6] Defense counsel asserted in opening statements that defendant's confession was coerced and that he told the police merely what they wanted to hear. Counsel asserted that defendant had confessed only so he could timely participate in an upcoming hearing on a previously-filed dependency and neglect (D& N) case concerning the family, and so that LC could retain custody of the children. Defense counsel also asserted that defendant had confessed because of lack of sleep and the effect of medications he was taking.
[¶7] During trial, the prosecution was allowed to elicit information that defendant had requested anal sex from LC, but she had declined. Defendant attempted to introduce evidence of KT's prior sexual acts, which included acting out sexually at age nine and a Utah Department of Human Services investigation indicating that she may have sexually assaulted a younger child. The court excluded the evidence.
[¶8] Defendant also sought to introduce detailed information regarding LC's involvement with Utah and Colorado social services departments. This evidence included LC's belief that at age nine KT may have been sexually abused by her biological father and LC's agreement with Colorado authorities to " support" KT in her allegations of defendant's abuse. The trial court excluded the evidence.
[¶9] During the prosecution's rebuttal closing argument, the prosecutor responded to defendant's theory that KT had fabricated the allegations and that the confession was false by asserting that defendant's presumption of innocence was " gone" ; that to believe defendant's story, the jury would have to conclude that KT told a lie so well that both the police and social services " followed through" ; and implored the jury to " do justice" for KT.
[¶10] Following defendant's conviction, the trial court found defendant was a habitual criminal and imposed seven concurrent sentences of forty-eight years to life in the custody
of the Department of Corrections. Defendant brought this appeal.
II. Challenge for Cause
[¶11] Defendant asserts the trial court erred in denying a challenge for cause to Juror M. We disagree.
A. Preservation and Standard of Review
[¶12] We first reject the People's contention that this issue is unpreserved. While defense counsel's challenge did not expressly state that it was for cause, the challenge took place in chambers, the trial court understood it to be a causal challenge, and the context of the challenge makes clear it was a challenge for cause. We thus conclude the issue is preserved.
[¶13] We review the trial court's denial of a challenge for cause for an abuse of discretion and will reverse its determination only if there is no evidence in the record to support it. People v. Palomo, 272 P.3d 1106, 1108 (Colo.App. 2011). The abuse of discretion standard gives deference to the trial court's credibility assessments, recognizing that court's unique perspective in evaluating the demeanor and body language of live witnesses, and it serves to discourage an appellate court from second-guessing the trial court's assessments based on a cold record. People v. Samson, 2012 COA 167, ¶ 15, 302 P.3d 311.
[¶14] We review the entire voir dire to determine whether the trial court abused its discretion. Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999).
B. Applicable Law
[¶15] To ensure a defendant's right to a fair trial before an impartial jury, a trial court must sustain a challenge for cause when " [t]he existence of a state of mind in the juror evinc[es] enmity or bias toward the defendant or the state." § 16-10-103(1)(j), C.R.S. 2013. However, section 16-10-103(1)(j) also states that no prospective juror " shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." Id. Thus, a trial court is entitled to afford considerable weight to a juror's commitment to set aside biases and to be fair. Samson, ¶ 14.
[¶16] A juror who cannot adhere to the principle that a defendant has a presumption of innocence must be excused. People v. Gurule, 628 P.2d 99, 102 (Colo. 1981).
[¶17] Here, during a chambers interview to discuss her juror questionnaire responses, Juror M explained that, seven years previously, her niece had been sexually assaulted and murdered by her sister's live-in boyfriend, and that she had testified at the trial against her sister and the boyfriend. When the trial court inquired whether her experience would affect her ability to be a fair and impartial juror, she stated:
I don't believe so. I have been a preschool teacher for twelve years. I'm not currently right now, but I understand there are things that, you know, children may make up. Adults lie, children lie. There are, you know, everyone has the right to be, you know, to prove their innocence, or prove their guilt, whatever the case may be.
[¶18] In response to the court's questioning, Juror M stated that she could set aside the events in her past, follow the instructions of the court, and decide the case based on the evidence. And, during questioning by both defense counsel and the prosecutor, Juror M stated that, although the case would be hard for her, she could consider the evidence in the case and make a decision and follow the presumption of innocence, recognizing that defendant did not have to prove his innocence. She also stated that her experience gave her a better view of the case because she would be able to stay fair and balanced.
[¶19] Given the full voir dire discussion with Juror M, we perceive no abuse of discretion in the court's determination that she had not
manifested unyielding bias for or against either party. Hence, we reject defendant's contention.
III. Expert Witness Testimony
[¶20] Defendant asserts that the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts about unreliable, irrelevant, and prejudicial sexual offender profiles and the statistical prevalence of physical evidence in sex assault cases. We disagree.
A. Standard of Review
[¶21] A trial court has broad latitude in determining whether a witness is qualified to be an expert witness. People v. Whitman, 205 P.3d 371, 383 (Colo.App. 2007).
[¶22] We review the trial court's admission of expert testimony for an abuse of discretion, People v. Tunis, 2012 COA 126, ¶ 3, and will not overturn the court's determination unless it is manifestly arbitrary, unreasonable, or unfair. People v. Masters, 33 P.3d 1191, 1201 (Colo.App. 2001), aff'd, 58 P.3d 979 (Colo. 2002). This deferential review reflects the superior position of the trial court to assess the expert's competence and whether the expert's opinion will be helpful to the jury. People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011).
[¶23] In reviewing the court's ruling regarding expert testimony, we afford the evidence the maximum probative value and minimum unfair prejudice. Whitman, 205 P.3d at 383.
B. Applicable General Law
[¶24] Under CRE 702, " [i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Thus, a person may qualify as an expert witness based on experience-based specialized knowledge that is not dependent on a scientific explanation. Salcedo v. People, 999 P.2d 833, 838 (Colo. 2000).
[¶25] To admit such testimony, a trial court must find that the testimony would be useful to the trier of fact and that the witness is qualified to render an expert opinion on the subject. Id. To determine whether the testimony would be useful to the jury, the trial court must consider whether the testimony would be logically relevant and whether the probative value of the testimony would be substantially outweighed by the danger of unfair prejudice under CRE 403. Id.
C. " Profile" Law
[¶26] In Salcedo, 999 P.2d at 837, the court held that expert testimony on drug courier profiles is inadmissible as substantive evidence of guilt. Federal courts have similarly held. See, e.g., United States v. Long, 328 F.3d 655, 666, 356 U.S.App.D.C. 117 (D.C. Cir. 2003). However, the " profile" label is not helpful in distinguishing admissible from inadmissible expert testimony. Id. Instead, courts focus on the purpose for which the evidence is offered: whether it is improper propensity evidence designed to show the defendant's character, or whether it instead seeks to aid the jury in understanding a pattern of behavior beyond its normal experience. Id. Thus, " experts may testify regarding the modus operandi of a certain category of criminals where those criminals' behavior is not ordinarily familiar to the average layperson." Id.
D. Application -- Moore
1. Profile Testimony
[¶27] Here, the prosecutor tendered and the court qualified Ms. Kandy Moore as an expert in child sexual abuse and sex offender characteristics. Defendant asserts that she testified to sexual offender profile characteristics when she testified that (1) child molesters " groom" their victims by participating in activities with them that tend to isolate and confuse the child as to whether the offender is doing something improper, and gave examples of overt and subtle grooming tactics; (2) only about five to ten percent of child victims are assaulted by a stranger; (3) in her clinical practice, over half of her cases involved situations in which the child had been assaulted by a family member; (4) child molesters are likely to
exhibit some type of minimization or denial about what they have done, and gave examples of that; and (5) some child molesters may justify their actions, and she gave examples of forms of justification.
[¶28] The prosecutor stated no specific reason for offering Moore's testimony. However, following the analytical approach of Long, id. at 667, we conclude that this evidence was not profile evidence, but served to educate the jury concerning child victims and adult perpetrators of sexual abuse, and the dynamics of sexual abuse of children. As such, the evidence was relevant to aid the jury concerning the modus operandi of sex offenders and was useful because jurors cannot be presumed to have knowledge of such characteristics. Here, where defendant denied that he committed any offense, the fact that his modus operandi was consistent with the modus operandi of sex offenders generally made it more likely than not that he committed the offenses at issue.
[¶29] Accordingly, Salcedo is distinguishable. As the supreme court clarified in Masters v. People, 58 P.3d at 993, the holding in Salcedo is very narrow, applying only to exclude drug courier profiles as substantive evidence of a defendant's guilt. The profile presented in Salcedo was problematic because it was used to prove that the defendant was a drug courier. Indeed, the expert witness in Salcedo testified that the defendant " fit" the courier profile. Salcedo, 999 P.2d at 836.
[¶30] Here, in contrast, Moore did not testify that defendant " fit" the characteristics of a sex offender, nor did she opine that KT fit the profile of a sexual assault victim. Further, the prosecutor did not argue that her testimony should be used for that purpose. Instead, Moore provided the jury with background information on patterns of child sexual abuse and behaviors that she had observed in her clinical practice of treating both victims and offenders. See United States v. Batton, 602 F.3d 1191, 1202 (10th Cir. 2010) (expert testimony that sex offenders are generally not strangers to their victims properly admitted because testimony concerned criminal methods outside the common knowledge of lay jurors); United States v. Hitt, 473 F.3d 146, 158-59 (5th Cir. 2006) (rejecting the defendant's profile testimony argument and concluding that admission of modus operandi of child molesters was not an abuse of discretion); United States v. Hayward, 359 F.3d 631, 636-37 (3d Cir. 2004) (expert testimony regarding grooming techniques of child molesters admissible); Long, 328 F.3d at 667 (upholding trial court's admission of expert witness testimony regarding the behavior and characteristics of sex offenders, which included a description of the " grooming" process).
[¶31] United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988), on which defendant relies, is inapposite. There, the court held that the trial court's admission of testimony concerning the " characteristics of a molester" was improper character testimony under Fed.R.Evid. 404(a). The court ruled the evidence inadmissible because the defendant did not place his character in issue during the trial. But here, defendant did not object to the expert's testimony under CRE 404(a).
[¶32] United States v. Banks, 36 M.J. 150, 161-62 (C.M.A. 1992), is likewise distinguishable because the evidence at issue there was proffered under Mil. R. Evid. 404(a), the equivalent rule to Fed.R.Evid. 404(a), as expert character profile evidence to substantively establish guilt. Here, in contrast, the testimony was not that defendant " fit" a profile. The evidence served to aid and educate the jury, it was relevant to show modus operandi, and to provide the jury with background information on patterns of child sexual abuse and behaviors. But see United States v. Raymond, 700 F.Supp.2d 142, 149 (D. Me 2010) (" a categorization of behavioral characteristics of child molesters and child victims is the 'subjective, conclusory approach' that cannot be 'reasonably assessed for reliability' under Rule 702." ); Bowen v. Haney, 622 F.Supp.2d 516, 544 (W.D. Ky. 2008) (" the view of the Kentucky courts concerning the exclusion of pedophile profile testimony is by far and away the majority view among all the state courts" ); Commonwealth v. Poitras, 55 Mass.App.Ct. 691, 774 N.E.2d 647, 650 (Mass.App. 2002) (" the expert fatally crossed the line, however, between proper 'abused child' profile opinion and impermissible profile opinion when she
testified at length . . . about the typical attributes and characteristics of those most likely to abuse children, which mirrored prior prosecution evidence about the defendant." ).
[¶33] The evidence was also permissible to rebut defendant's assertion that his confession was a product of police coercion and stated only what the police wanted to hear, and his assertion that KT had fabricated the assaults. See Long, 328 F.3d at 667-68 (acknowledging testimony was helpful to rebut defense of victim's fabrication).
2. Relevancy & Prejudice
[¶34] Defendant further contends that Moore's testimony was unduly prejudicial under CRE 403. Giving her testimony the maximum probative value and minimal prejudicial effect, we reject the contention.
[¶35] Here, the trial court instructed the jury in voir dire and prior to deliberations about its role in weighing testimony and deciding witness credibility. In addition, the court instructed the jury immediately before Moore's testimony that it was to weigh and judge expert testimony as it would any other testimony, and it could accept or reject the testimony in whole or in part.
[¶36] Moore was also thoroughly cross-examined at trial. Moreover, it was defendant's counsel who referenced her testimony in closing, where counsel argued that it did not corroborate either defendant's or KT's statements. It was only in rebuttal, in response to defense counsel's argument about lack of corroboration, that the prosecutor referenced Moore's testimony concerning grooming and minimization. Further, the jury saw defendant's videotaped confession mirroring KT's allegations and heard KT testify about the abuse.
[¶37] Under these circumstances, we conclude that Moore's testimony was not unfairly prejudicial because of the substantial other evidence against defendant, the court's instructions to the jury, and defendant's thorough cross-examination of the witness.
3. Expert Qualifications
[¶38] Defendant also asserts that Moore was not qualified to give expert testimony regarding offender ...