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Kutzly v. People

Supreme Court of Colorado, En Banc

June 17, 2019

William KUTZLY, Petitioner,
The PEOPLE of the State of Colorado, Respondent.

Page 839

          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 11CA2471

          Attorneys for Petitioner: Megan A. Ring, Public Defender, Tracy C. Renner, Deputy Public Defender, Denver, Colorado

         Attorneys for Respondent: Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado



         [¶1] William Kutzly was charged with several crimes involving sexual assault on a child. During his trial, the court qualified a social worker as an expert witness in child sexual assault and victim dynamics; the witness then testified about behaviors common among sexually abused children, as well as traits common among sex offenders. Prior to trial, Kutzly moved the trial court to hold a Shreck hearing to determine the reliability of the social worker’s proposed testimony. The trial court held a hearing on that motion, determined that the testimony was reliable, and ultimately denied the motion to hold a full evidentiary Shreck hearing on that issue. Kutzly argues that this was in error.[1] We conclude that the trial court made specific findings of reliability such that its decision not to hold a Shreck hearing was not an abuse of discretion. Hence, we hold that the trial court did not abuse its discretion in concluding that the expert’s testimony was reliable under CRE 702. We therefore affirm the court of appeals’ decision.

          I. Facts and Procedural History

         [¶2] Kutzly helped his wife run her daycare. J.S. attended that daycare between the ages of two and three. During that time, J.S.

Page 840

described to his mother how Kutzly had sexually assaulted him which, combined with J.S.’s newly sexualized behavior, prompted J.S.’s mother to contact the police. Following an investigation, Kutzly was charged with sexual assault on a child, sexual assault on a child by one in a position of trust, and a habitual sexual offender count. Kutzly’s theory of defense was that J.S.’s mother fabricated the story after learning that Kutzly was a registered sex offender to explain away J.S.’s behavior.

         [¶3] Prior to trial, the People filed a notice endorsing Gayle Christensen, a social worker, as an expert witness in child sexual assault and victim dynamics who would testify in the areas of perpetrator dynamics, victim dynamics, and rape trauma syndrome.[2] The primary basis of Christensen’s expert qualification was his 31 years of experience counseling (1) over 1,000 children who were reportedly victims of sexual abuse, and (2) over 250 suspected sex offenders. In response to the endorsement of Christensen as an expert, Kutzly filed a motion requesting an evidentiary hearing pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001), i.e., a Shreck hearing, to determine the admissibility of Christensen’s proposed testimony. The trial court held a motions hearing to determine if a Shreck hearing was warranted. During that motions hearing, Kutzly argued that Christensen should not be permitted to testify about common characteristics of child sex abuse victims or sex offenders. According to Kutzly, such testimony was unreliable because (1) it could not be confirmed that Christensen’s previous clients were actually victims or perpetrators of abuse, and (2) his opinions were not supported by studies. The People responded that a Shreck hearing was unnecessary because experience-based expert testimony does not need to be supported by a scientific foundation to be reliable and Kutzly’s arguments did not relate to admissibility but rather to the strength of the evidence. Ultimately, the trial court adopted the People’s arguments and denied Kutzly’s motion to hold a Shreck hearing.

         [¶4] At trial, the court accepted Christensen as an expert in the dynamics of sexual abuse and sexual offenders. In so doing, the trial court noted that Christensen held a master’s degree in social work and an undergraduate degree in psychology, and that he had participated in continuing education throughout his career. It also noted that Christensen is a licensed clinical social worker and was approved as a full-treatment provider by the Sex Offender Management Board, and that he had 31 years of experience working with over 1,000 child victims of sexual abuse and over 250 sex offenders.

         [¶5] On direct examination, Christensen testified about common behaviors in sexual abuse relationships, including that sex offenders: (1) often gain access to children through supervisory roles; (2) sometimes target more vulnerable children, such as those with a high level of emotional need, or those who lack adult attention or supervision; (3) exploit children by identifying their emotional needs; and (4) gradually gain a child’s compliance through grooming, i.e., by beginning with ordinary touching and progressing to inappropriate touching. Christensen also testified that it is common for child victims to: (1) delay reporting; (2) only tell part of the story when they initially report, then gradually disclose more information; (3) act out sexually themselves; and (4) react differently than adults to abuse.

         [¶6] On cross-examination, the defense questioned Christensen about how he can tell whether the people he treats are actual victims or perpetrators of sexual abuse. Christensen answered that sometimes abuse is clearly confirmed because of an admission or additional evidence but other times it is difficult to assess and he can never be one hundred percent certain that abuse actually occurred in each circumstance. The defense also asked if Christensen’s opinions about common behaviors ...

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