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People v. Relaford

Court of Appeals of Colorado, Fifth Division

June 30, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
David A. Relaford, Defendant-Appellant.

         Mesa County District Court No. 11CR1108 Honorable Richard T. Gurley, Judge.

          Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER, JUDGE.

         ¶ 1 A jury convicted defendant, David A. Relaford, of twenty-seven offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2015. Relaford appeals the judgment of conviction and the sentence imposed.

         ¶ 2 Relaford argues that the trial court reversibly erred in admitting (1) expert testimony about the credibility of child victims of sexual assault and (2) numerous sex toys and pornography found at his home. He also argues that SOLSA is unconstitutional. We address and reject these contentions and affirm.

         I. Facts and Procedural History

         ¶ 3 In the summer of 2011, seven-year-old O.S. and his adoptive mother lived with Relaford at his house. Several weeks after O.S. and his mother moved out, O.S. told his mother that Relaford had sexually assaulted him. His mother called the police, and a police detective conducted a forensic interview with O.S.

         ¶ 4 During the interview, O.S. described multiple incidents in which Relaford sexually assaulted him. O.S. said that Relaford sometimes used sex toys during the assaults and they had watched a pornographic movie and looked at pornographic magazines together. O.S. also told the detective that he had witnessed Relaford sexually assault another child, M.D., an eight-year-old girl who lived nearby and was friends with O.S.

         ¶ 5 The detective conducted a forensic interview with M.D. M.D. initially denied that anything had happened with Relaford. About twenty-five minutes into the interview, the detective began to ask more focused questions about M.D.'s relationship and experiences with O.S. and Relaford. The detective told M.D. that O.S. said that he had seen something happen to M.D. when M.D. was at his house. About fifteen minutes later, the detective told M.D. that she (the detective) knew what had happened but that "it need[ed] to come from M.D." M.D. responded, "Dave [Relaford] has actually done it to me."

         ¶ 6 Like O.S., M.D. detailed several instances of sexual assault by Relaford, including at least one instance in which he used a sex toy. M.D. also described watching pornographic movies with Relaford and looking at pornographic magazines at his house.

         ¶ 7 The People charged Relaford with five incidents of sexual assault against O.S. and six incidents against M.D., differentiated by the location where each incident occurred. For each incident, Relaford was charged with one count of sexual assault on a child and one count of sexual assault on a child by one in a position of trust. He was also charged with four counts of committing sexual assault on a child as part of a pattern of abuse and one count of second degree kidnapping (based on M.D.'s statement that during one assault, Relaford took her from the living room of his home into his bedroom).

         ¶ 8 Both victims testified at trial, and video recordings of their forensic interviews were admitted and played for the jury. The interviewing detective also testified regarding the interviews and the investigation of Relaford, including the search of his home (under a warrant) and his police interview.

         ¶ 9 The detective testified that the police had found numerous sex toys and pornographic videos and magazines at Relaford's house and property. Many of the places where the sex toys and pornography were found were consistent with the victims' descriptions of those locations. Both victims also said that Relaford used Vaseline during the assaults, and O.S. testified that Relaford got the Vaseline from the bathroom. Vaseline was found in Relaford's bathroom. Additionally, O.S.'s description of several of the sex toys Relaford used during the assaults matched the appearance of some of the toys found. A sex toy that M.D. gave to her mother after her forensic interview was also admitted into evidence. Her mother testified that M.D. had told her that Relaford had given M.D. the toy with instructions to use it on herself.

         ¶ 10 The sex toys were submitted for DNA testing. The prosecution's DNA expert testified that DNA samples from one of the sex toys O.S. had identified matched O.S.'s and Relaford's DNA. DNA samples from the sex toy M.D. said Relaford had given her matched M.D.'s DNA.

         ¶ 11 The prosecution also presented testimony from the nurses who had examined the victims. The nurse who examined O.S. testified that the findings she made during her examination of his anus were consistent with the disclosures he had made to her about the sexual assaults by Relaford. The nurse who examined M.D. testified that she did not observe any injuries attributable to the disclosures M.D. had made to her about the sexual assaults, but that did not mean M.D. had not been sexually assaulted.

         ¶ 12 Another part of the prosecution's case-in-chief was evidence of statements Relaford made during the investigation. The detective testified that during her interview of Relaford, he had initially told her that he had been alone with both children, that the children had never been in his bedroom, and that his pornography was locked up where the children could not access it. However, after the detective told Relaford that items had been collected for DNA tests, he said the children could have gotten into his bedroom and "snooped, " and that he had never been alone with the children.

         ¶ 13 The detective also testified about a letter Relaford had written to his girlfriend after his arrest, which she had given to the police. In the letter, Relaford said that he had once masturbated in their tent when he was alone, and then he had "cleaned up" with soap and water. He said that when he went camping with O.S., O.S. vomited in almost the same spot. The prosecution argued that these statements were significant because O.S. alleged that Relaford had sexually assaulted him when they were camping, and before Relaford wrote the letter, the detective had told him essentially that if the police found his DNA and the kids' DNA mixed together, it would be very bad for him.

         ¶ 14 Relaford's defense at trial was primarily that the victims' testimony was not believable. Among other things, defense counsel emphasized that (1) O.S. and M.D. testified to certain details that they had omitted in their forensic interviews; (2) M.D. initially denied that Relaford had sexually assaulted her; and (3) O.S.'s description in his interview regarding some of Relaford's physical characteristics was inaccurate.

         ¶ 15 The jury convicted Relaford on all charges. The trial court sentenced Relaford to twenty-four years' imprisonment for kidnapping, to be served consecutively to fifteen consecutive sentences of twelve years to life that were concurrent to eleven sentences of six years to life for the sexual assault convictions.

         II. Expert Testimony

         A. Additional Facts

         ¶ 16 During trial, the prosecution presented testimony from a marriage and family therapist who was qualified as an expert in "child sexual assault and abuse, specifically patterns of disclosure, outcry statements, Victim-Offender relationship dynamics, the process of memory, and suggestibility and fabrications." Defense counsel did not object to the therapist's qualifications as an expert in these areas. The therapist testified that she did not review any of the police reports in the case or watch the forensic interviews, but the prosecutor had provided her with some basic information about the ages of the children, the relationships of the parties, and where the events occurred.

         ¶ 17 The therapist then described the process of memory in general and in children who have been sexually assaulted. She testified that with multiple incidents of sexual assault occurring in similar locations, children might mix up the details of each episode, and inconsistent statements about what happened when were not unusual. Additionally, she testified that younger children were much more likely to omit an accurate detail about an event in one interview that they included in a later interview than they were to agree with suggestive or coercive questioning about something that did not occur. Defense counsel did not object to any of this testimony, and Relaford does not challenge it on appeal.

         ¶ 18 The prosecutor next asked the therapist a series of questions about "fabrication." The therapist testified that children do lie. She said that preschool-age children lie when they are playing games like hide-and-go-seek, and older children lie to avoid the consequences of their actions and the blame, disappointment, or disapproval of adults. However, she testified that research showed that it is "pretty unusual, even kind of rare" for children to lie about an adult. She testified that the few times they do so is because they have mental health issues and (or alternatively) they are telling lies in "the school environment" about teachers, family members, or daycare providers.

         ¶ 19 After this testimony, the prosecutor asked the therapist about her experiences with children fabricating allegations of sexual assault. She testified that there were two areas in which practitioners had encountered such fabrication. One was with "system-savvy adolescents" who have "been in lots of different sorts of institutional settings" and might fabricate an allegation against a caregiver to force a placement change or to "get even." The other was in "very, very disturbed, high-conflict custody cases" in which one parent convinced the child to say the other parent was sexually abusing him or her. The therapist added that she had also encountered situations in which adults misunderstood an innocent statement by a preschooler as an allegation of sexual assault.

         ¶ 20 The prosecutor then asked the therapist, "Okay, what about, of course, in our situation we're talking about a seven- and eight-year-old, a little bit beyond preschool? So, I mean, have you ever experienced a situation where somebody in that age, seven or eight -, " at which point defense counsel objected. At the bench, defense counsel explained that the prosecutor was trying to impermissibly "get [the therapist] to say that these kids were not lying." The trial court sustained the objection but told the prosecutor he could ask another question. The following colloquy between the prosecutor and the therapist then occurred:

Q. [Prosecutor:] Okay, in your personal experience and practice, have you ever come across a false allegation of sexual abuse for - in any other circumstance, other than what you've already mentioned: severe mental health, system-savvy ...

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