County District Court No. 14CR139 Honorable Patrick D.
Cynthia H. Coffman, Attorney General, Katharine Gillespie,
Senior Assistant Attorney General, Denver, Colorado, for
Springer and Steinberg P.C., Michael P. Zwiebel, Denver,
Colorado, for Defendant-Appellant
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.
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.
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).
Witness Testimony Regarding Coaching
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.
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
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?
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, ...