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People v. Heredia-Cobos

Court of Appeals of Colorado, Seventh Division

October 19, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Israel Heredia-Cobos, Defendant-Appellant.

         Boulder County District Court No. 14CR139 Honorable Patrick D. Butler, Judge

          Cynthia H. Coffman, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Springer and Steinberg P.C., Michael P. Zwiebel, Denver, Colorado, for Defendant-Appellant


          J. JONES, JUDGE.

         ¶ 1 Defendant, Israel Heredia-Cobos, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. One of the issues he raises is whether the district court abused its discretion in allowing a forensic interviewer to testify that the child victim, Y.P., didn't appear to have been coached as to what to say during an interview. Though such testimony is usually inadmissible, we conclude that in this case the defense opened the door to the forensic interviewer's testimony by challenging the victim's statements on the basis that she had fabricated them, at least in part, because of coaching by her relatives and others. We also reject defendant's other contentions, and therefore we affirm.

         I. Background

         ¶ 2 Defendant is Y.P.'s great uncle. When Y.P. was nine years old, she spent the night at defendant's home with other family members. While she was playing on the trampoline with her cousins, defendant came outside and said that cake was being served. After Y.P.'s cousins went inside the house, defendant pushed Y.P. down, got on top of her, and touched her breast. He then tried to put his hand down her pants, but Y.P. pushed him off and ran inside.

         ¶ 3 Y.P. reported the assault just over four years later after a classmate told her that she had been raped by her father. The People charged defendant with a single count of sexual assault on a child.

         II. Discussion

         ¶ 4 Defendant contends that the district court abused its discretion by (1) allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn't show any signs of having been coached and (2) allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b).

         A. Witness Testimony Regarding Coaching

         1. Preservation and Standard of Review

         ¶ 5 The parties agree that defendant preserved this issue.

         ¶ 6 We review the district court's evidentiary rulings for an abuse of discretion. People v. Faussett, 2016 COA 94M, ¶ 33. To constitute an abuse of discretion, the district court's evidentiary ruling must have been manifestly arbitrary, unreasonable, or unfair, or based on a misunderstanding or misapplication of the law. Id.

         2. Analysis

         ¶ 7 The prosecutor called Lisa Tani, a forensic interviewer, to testify as an expert about her interview of Y.P. (Defense counsel didn't object to the prosecutor's request that Ms. Tani be allowed to give expert testimony.)

         ¶ 8 Ms. Tani initially testified about how she interviews children generally. The prosecutor asked her whether "there are certain things that you are looking for or precautions that you are taking throughout the interview?" Ms. Tani replied, "So while we interview children we assess for coaching, suggestibility, . . . how trauma may affect their memory, . . . development, those type of things."

         ¶ 9 The prosecutor later returned to the subject of coaching.

Q: Okay. You also said that you're looking for signs of suggestibility, um, and you mentioned coaching, signs of coaching. What signs of coaching are you talking about?
A: So if a child has been coached, which typically you will see a child being coached under the age of 10, they are usually coached on that specific event. So a caregiver - they might overhear someone talking about an event, so they will come in and just tell you about that event. Typically, they don't have the sensory detail that we look for, the peripheral details, and they have limited information regarding that event.

         ¶ 10 Ms. Tani also testified that she doesn't assess the child's credibility, but when asked what she assesses during an interview she said, "I will assess on coaching. If I feel that . . . they were being suggestive, . . . I will come up and talk to the parents."

         ¶ 11 The prosecutor then turned to Ms. Tani's interview of Y.P.

Q: Did you - and I'm not asking you to opine on her credibility, but did you see any indication throughout that interview of the concerns that you have just talked about?

         Defense counsel objected that the question called for Ms. Tani to comment on Y.P.'s credibility. The prosecutor argued that such testimony wasn't an opinion about credibility and pointed out that the defense had brought up "numerous times" at trial that Y.P. had made up the allegations "because she overheard gossip or . . . was somehow trying to fit in as a peer at school." So, the prosecutor argued, the testimony was relevant to rebut that theory. The court overruled the objection, ...

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