County District Court No. 11CR1108 Honorable Richard T.
Cynthia H. Coffman, Attorney General, Ellen M. Neel,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Joseph
Paul Hough, Deputy State Public Defender, Denver, Colorado,
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
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
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
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
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
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
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
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.
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
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,