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People v. Short

Court of Appeals of Colorado, Second Division

April 5, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Roger Lee Short, Defendant-Appellant.

          Mesa County District Court No. 13CR1151 Honorable Valerie J. Robison, Judge.

          Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          DAILEY, JUDGE.

         ¶ 1 Defendant, Roger Lee Short, appeals the judgment of conviction and sentence entered on a jury's verdicts finding him guilty of sexual assault on a child and sexual assault on a child-pattern of abuse. We affirm in part, vacate in part, and remand with directions.

         I. Background

         ¶ 2 While driving with her Grandmother L in July 2013, the victim, an eight-year-old girl, saw Short napping in the park. The victim began to yell, while ducking down in her booster seat in order to hide from him. When Grandmother L asked what was wrong, the victim responded that she hated Short and was going to stab him someday because he had been "touching" her and "messing with" her. Upon further questioning, the victim said Short had been touching her "down there, " pointing to her vaginal area; had masturbated in front of her while the rest of her family had gone outside to smoke; and had told her he would kill her if she ever told anyone. Later, the victim disclosed that Short had also digitally penetrated her anus and made her dance naked.

         ¶ 3 Short had dated the victim's other grandmother, Grandmother K, for four years, and they often visited the then four-to-seven-year- old victim at the victim's home. During this time, Grandmother L and the victim's mother were concerned that the victim was being sexually assaulted because she had vaginal redness and swelling, experienced behavioral changes, suffered from repeated urinary tract infections, and had regressed in her toilet training. Several times, they asked the victim if Short or anybody else was sexually assaulting her. When Grandmother L asked if "anybody was touching her . . . she would say no. But, if [Grandmother L] asked her if [Short] was touching her, she would not answer [Grandmother L]."

         ¶ 4 When questioned by police, Short admitted knowing the victim's family and visiting her home. He also stated that he was aware of the victim's incontinence issues and that "someone's abusing her."

         ¶ 5 The prosecution charged Short with two counts of sexual assault on a child and two counts of sexual assault-pattern of abuse. One set of sexual assault and sexual assault-pattern of abuse charges was based on acts of fondling; the other was based on acts of digital penetration.

         ¶ 6 At trial, the victim testified in some respects inconsistently to what she had previously told others. Additionally, she could not remember how Short used to "play with her" and if she saw Short touch himself. She had difficulty remembering where Short touched her, although she eventually indicated that he touched her on "her privates." Consequently, the prosecution introduced evidence of the victim's prior statements and of possible reasons for discrepancies or inconsistencies between those statements and the victim's trial testimony.

         ¶ 7 In his defense, Short presented two witnesses: (1) the victim's primary care physician, who testified that the victim's incontinence issues were attributable to physical abnormalities and not sexual assault; and (2) a clinical psychologist, who testified that Grandmother L's presence during a forensic interview tainted the victim's answers. In closing argument, he asserted that the victim's allegations had been suggested to her by her mother's and Grandmother L's repeated questions about whether Short had sexually abused her, and that the family's repeated questions gave the victim an outlet to assign blame for her incontinence and issues at home. This theory was supported, he argued, by the fact that the victim waited four years to report the abuse, despite having been repeatedly questioned about it beforehand.

         ¶ 8 The jury acquitted Short of the sexual abuse counts relating to the digital penetration allegations. It found him guilty, however, of sexual assault on a child and sexual assault on a child-pattern of abuse in connection with the fondling allegations. The trial court imposed two concurrent sentences on Short; the longer was for nine years to life imprisonment in the custody of the Department of Corrections.

         II. Bolstering Evidence

         ¶ 9 Short contends that the testimony of three witnesses improperly bolstered the victim's credibility. We conclude that reversal is not warranted. ¶ 10 Short focuses on the testimony of the following witnesses:

• a family therapist who, though unfamiliar with the victim or the facts of this case, answered a series of hypothetical questions based on the circumstances of the case to explain how a child like the victim might (1) not be able to disclose in court things such as anal penetration and naked dancing after having disclosed them in a clinical environment; (2) have an extreme visceral reaction upon seeing her abuser for the first time in over a year; and (3) make inconsistent statements, without that necessarily being a sign of fabrication on the child's part;
• a detective who, remembering the therapist's testimony about it not being uncommon for a child to fail to disclose anal penetration, testified that, based on his training, experience, and observations of interviews, that was the case; and
• Grandmother L, who, in response to a question about whether she was concerned that the victim would not be honest with her, said, "No. She, she normally would not lie about something like that."

         ¶ 11 Significantly, Short did not object to any of this testimony. Consequently, reversal is not warranted in the absence of plain error. See Crim. P. 52(b); People v. Sommers, 200 P.3d 1089, 1095 (Colo.App. 2008).

         ¶ 12 It is improper for a witness to testify to whether another "witness was telling the truth on a specific occasion because it is solely the jury's responsibility to determine whether a particular witness's testimony or statement is truthful." People v. Bridges, 2014 COA 65, ¶ 11. "This rule applies to both direct and indirect implications of a [witness's] truthfulness." Venalonzo v. People, 2017 CO 9, ¶ 32.

         A. The Therapist

         ¶ 13 Our case law recognizes that "'[a]n expert may testify as to the typical demeanor and behavioral traits displayed by a sexually abused child, ' . . . because it assists the jury in understanding the victim's behavior after the incident - why the victim acted the way he or she did." People v. Relaford, 2016 COA 99, ¶ 28 (quoting People v. Mintz, 165 P.3d 829, 831 (Colo.App. 2007)). This type of expert testimony "aid[s] the jury in understanding the typicality of reactions by [children] who have been subjected to sexual abuse that might, under other circumstances, be considered bizarre." People v. Morrison, 985 P.2d 1, 6 (Colo.App. 1999), aff'd, 19 P.3d 668 (Colo. 2000); accord People v. Fasy, 829 P.2d 1314, 1317 (Colo. 1992) (The doctor's "testimony clearly assisted the jury in understanding the victim's behavior after the incident.").

         ¶ 14 This type of evidence is considered proper because it "(1) relates to an issue apart from credibility and (2) only incidentally tends to corroborate a witness's testimony." Relaford, ¶ 31 (quoting People v. Cernazanu, 2015 COA 122, ¶ 20). This evidence does not say whether the child was or was not lying on a specific occasion; instead, it explains why a jury should not necessarily disbelieve a child because of circumstances that, in a different context, would discredit the child's story. See People v. Whitman, 205 P.3d 371, 383 (Colo.App. 2007). Such information provides "a relevant insight into the puzzling aspects of the child's conduct and demeanor which the jury could not otherwise bring to its evaluation." Id. (quoting People v. Aldrich, 849 P.2d 821, 829 (Colo.App. 1992)); see also State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) ("Background data providing a relevant insight into the puzzling aspects of the child's conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children.")) (quoted with approval by the supreme court in Fasy, 829 P.2d at 1317).

         ¶ 15 The present case is, in many respects, like People v. Mintz. There, as here,

the expert . . . answered a number of hypothetical questions reflecting the facts of the present case. The expert testified about traits and behavior generally exhibited by children. He did not testify [the] victim exhibited these traits, and he did not offer an opinion about whether [the] victim told the truth about having been abused.
The purposes for which the expert's testimony was admitted in the case have previously been deemed proper. . . .
. . . .
This evidence was admissible "because the expert testified in general terms [and] did not focus on the truthfulness of the child's statements."

Mintz, 165 P.3d at 831-32 (quoting Morrison, 985 P.2d at 5); see also Morrison, 985 P.2d at 5 ("The hypothetical question posed to this witness contained facts substantially identical to those disclosed by the evidence here, i.e., one of the victims had made rather bizarre accusations against defendant and had later withdrawn them. The expert's opinion that such actions are typical of the method of empowerment used by young male victims was admissible under CRE 702 to explain that such accusations and later denials by such a victim are not necessarily unusual.").

         ¶ 16 We reject Short's assertion that Mintz and Morrison were wrongly decided. Persuaded by those authorities, we perceive nothing improper about the therapist's testimony here.

         ¶ 17 In reaching this conclusion, we are cognizant of the supreme court's recent decision in Venalonzo. In that case, a forensic interviewer "testified about the two girls' interviews and compared their behavior to that of other child sex assault victims. Specifically, she stated that many of the children's behaviors were common to [those of] other child sex assault victims she had interviewed . . . ." Venalonzo, ¶ 35. The supreme court held that "the only purpose for the interviewer's testimony comparing [the two children's] behavior to that of other child sex assault victims was to bolster the children's credibility. Admitting this evidence did not make any other fact at issue more or less probable." Id. at ¶ 36 (citation omitted). Consequently, the court held that the interviewer's testimony "improperly bolstered the credibility of the child victims by creating an impermissible inference that they were telling the truth in this case." Id. at ¶ 2.

         ¶ 18 Venalonzo is distinguishable from the present case. Unlike the present case, the expert in Venalonzo was intimately involved with the child victims in the case. She was the individual who took their statements, testified to their behaviors, and compared their behaviors to those she saw in other child sexual abuse cases. The interviewer was, therefore, testifying as both a fact witness and an expert. The jury could not help but interpret what the expert had to say, in light of her dual role, as intimating her opinion that the children had been truthful during the interview.

         ¶ 19 In the present case, the therapist did not play a dual role. She was not involved in taking - and did not otherwise witness - the victim's statements. Her expert opinions could not be interpreted as conveying an opinion of her belief in the truthfulness of the victim on another occasion.

         ¶ 20 Notably, the court in Venalonzo did not repudiate or retreat from its earlier decision in Fasy - a decision consistent with the principles and authorities upon which we rely here. Consistent with Fasy, the therapist's testimony here permissibly conveyed to the jury information that would assist it in evaluating what might appear to be puzzling aspects of the victim's behavior subsequent to the commission of the alleged offense. Although that evidence "may incidentally give rise to an inference that a victim is or is not telling the truth about the specific incident, " "this fact alone is insufficient to deny admission of the evidence, because expert testimony generally tends to bolster or attack the credibility of another witness." People v. Koon, 724 P.2d 1367, 1370 (Colo.App. 1986).

         B. The Detective

         ¶ 21 We also perceive nothing improper about the detective's testimony. The detective was not testifying to the truthfulness of the therapist, and thus, inferentially, of the victim too. The detective was simply relating to the jury his observations about child victim disclosures; he rendered no opinion about whether a child's difficulty in disclosing something made it more or less likely that he or she was telling the truth.

         C. Grandmother L's Testimony

         ¶ 22 Based on our reading of other parts of Venalonzo and of Cernazanu, we conclude that Grandmother L's testimony that the victim "normally would not lie about something like that" was improper.

         ¶ 23 In Venalonzo, the supreme court held that a mother's testimony that her child

did not display any signs that she was lying when she reported the incident, that [the child] was not sophisticated enough to make up a story about the sexual assault, and that [the child] had no reason to accuse [the defendant] unless the incident had actually occurred . . . amounted to testimony that [the child] was telling the truth about the sexual assault.

Venalonzo, ¶ 39. Further, the court pointed to the prosecutor's statement ("you said that she wouldn't accuse somebody of this") and question (whether the child's "mind wasn't sophisticated enough to come up with this") as eliciting the mother's comments on the child's veracity in the case. Id. at ¶ 42.

         ¶ 24 In Cernazanu, a division of this court held that a mother's testimony that her child did not display typical "lying" behavior when reporting a sexual assault necessarily implied to the jury that the victim was not lying, and thus, that she was telling the truth on that occasion. 2015 COA 122, ¶¶ 16-22.

         ¶ 25 Similar to those cases, Grandmother L's comment that the victim would normally not lie about something like "that" served no other purpose than to convey to the jury Grandmother L's belief that the victim was not lying - and, consequently, that she was telling the truth - on this occasion.

         ¶ 26 In so concluding, we necessarily reject the prosecution's argument that Grandmother L's testimony was evidence of the victim's general character for truthfulness, which under CRE 608(a) was admissible because Short's defense attacked the victim's character for truthfulness. The evidence challenged on appeal was not evidence of the victim's general character for truthfulness but rather "evidence of [the victim's] specific veracity habit and its application to a specific occasion." Cernazanu, ¶ 23.

         ¶ 27 As noted earlier, because Short did not object to Grandmother L's testimony, reversal is not warranted in the absence of plain error.

         ¶ 28 Plain error is error that is both "obvious and substantial." Hagos v. People, 2012 CO 63, ¶ 14. To qualify as plain error, the error must be so clear cut that a trial judge should have been able to avoid it without benefit of objection, People v. Pollard, 2013 COA 31M, ¶ 39, and it must be "seriously prejudicial" - that is, it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the defendant's conviction. People v. Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.

         ¶ 29 "The rule that a witness may not express an opinion as to the credibility of another witness is both clear and long established." People v. Cook, 197 P.3d 269, 275-76 (Colo.App. 2008); see, e.g., People in Interest of G.E.S., 2016 COA 183, ¶ 31 n.2 ("[T]his court and the supreme court have long held that a witness may not vouch for the credibility of another witness on a particular occasion[.]")." Although, in some circumstances, it is not always clear how the rule applies, Relaford, ¶¶ 44-48 (sorting out permissible from impermissible expert opinion on child behaviors), it is, in our view, clear in this case. Thus, the "obvious" prong of the plain error standard is met.

         ¶ 30 The issue, then, is whether the error in allowing Grandmother L's testimony was so "seriously prejudicial" as to warrant a new ...


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