County District Court No. 13CR1151 Honorable Valerie J.
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Stephen
Arvin, Deputy State Public Defender, Denver, Colorado, for
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.
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
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.
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.
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,
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).
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.
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
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 ...