Denied October 10, 2019.
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Plata County District Court No. 14CR457 Honorable William L.
J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Stephen Arvin,
Deputy State Public Defender, Denver, Colorado, for
Sexual assault cases are particularly difficult given the
need to balance the rights of the victim against those of the
accused. See State v. Boisvert, 119 N.H. 174, 400
A.2d 48, 51 (1979). The law must weigh the consequences of
invading the accuser's privacy and the related risk that
sexual assaults may go unreported if victims fear
embarrassment or intimidation. At the same time, the
defendant's rights to a fair trial and to challenge the
credibility and veracity of the accuser must be protected.
The Colorado General Assembly, like other legislatures
throughout the United States, enacted a rape shield statute
§ 18-3-407, C.R.S. 2018 (the Rape Shield Statute) to
strike this balance.
This case presents that dilemma. We must decide whether the
trial court properly balanced a defendant's efforts to
challenge the truthfulness of the accuser against the
prosecutor's evidence bolstering the accuser's
credibility. We conclude that it did not.
Defendant, Edmund Peter Marx, appeals his convictions of
sexual assault on a child (position of trust as part of
pattern of abuse), sexual assault on a child (position of
trust), and aggravated incest. The accuser alleged that Marx
had sexually assaulted her on multiple occasions when she was
Marx's defense focused on the accuser's alleged lack
of credibility. The prosecutor responded by calling an expert
witness to provide opinions on the likelihood that a child or
teenager will falsely report a sexual assault and the
prevalence of sexual assault.
Marx contends that the trial court erred by:
• allowing the prosecutor to introduce expert
testimony on the percentage of children and teenagers who
fabricate allegations of sexual abuse, the percentage of
girls who are sexually abused by family members, and the
percentage of women who have been sexually assaulted;
• excluding a neighbor's testimony challenging
the accuser's truthfulness; and
• rejecting the defense's request for an
evidentiary hearing under the Rape Shield Statute, to
determine whether Marx could introduce at trial evidence of
the accuser's purported history of falsely accusing
schoolmates of sexual assault.
We hold that Marx is entitled to a new trial because the
trial court erred by permitting the prosecutor's expert
to provide the statistical opinions; that the trial court
correctly excluded the neighbor's testimony; and that the
trial court erred by not conducting a hearing on the
admissibility of Marx's evidence allegedly showing that
the accuser had falsely reported sexual assaults.
Trial Court Erred in Admitting the Expert's Statistical
Expert's Opinions on Sexual Assault Statistics
The prosecutor called Sheri Vanino as an expert on
"sexual assault victim behavior." The trial court
accepted her as an expert. Vanino told the jury that
"between 2 and 8 percent of sexual assaults that are
reported to the police turn out to be false. For a child...
the studies are more around 2 to 6 percent, child or
teen...." She further testified that sexual assault is
"not at all rare. One in four women are [sic] sexually
assaulted in a lifetime, most of whom are sexually assaulted
under the age of 18." She noted that "somewhere
around 50 percent of children... are abused by a family
Standard of Review
We review a trial court's ruling on the admissibility of
expert testimony for an abuse of discretion. Kutzly v.
People, 2019 CO 55, ¶8, 442 P.3d 838, 841. A court
abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or when it misconstrues
the law. People v. Salas, 2017 COA 63, ¶30, 405 P.3d
The parties dispute whether Marx preserved his objections to
Vanino's opinion testimony. We need not decide the
preservation issue, however, because we hold that the
testimony was improper even under the plain error standard of
Plain error is error that is obvious and substantial.
Hagos v. People, 2012 CO 63, ¶14, 288 P.3d 116, 120.
An error is "obvious" if the challenged action
contravened a clear statutory command, a well-settled legal
principle, or Colorado case law. People v. Pollard,
2013 COA 31M, ¶40, 307 P.3d 1124, 1133. A
"substantial" error is one that so undermined the
fundamental fairness of the trial itself as to cast
"serious doubt on the reliability of the judgment of
conviction." Id. at ¶43, 307 P.3d at 1133
(quoting Hagos, ¶14, 288 P.3d at 120).
"Because this standard was formulated to permit an
appellate court to correct `particularly egregious
errors,' the error must impair the reliability of the
judgment of conviction to a greater degree than under
harmless error to warrant reversal." Hagos,
¶14, 288 P.3d at 120 (quoting Wilson v. People, 743
P.2d 415, 420 (Colo. 1987)).
Expert Testimony on Whether Children Tend to Fabricate Sexual
Abuse Allegations and the Likelihood of Becoming a Victim of
An expert witness may provide opinion testimony so long as
"the expert's specialized knowledge will assist the
jury in understanding the evidence or in determining a fact
in issue." People v. Mintz, 165 P.3d 829, 831
(Colo.App. 2007). An expert may not opine on a witness's
credibility or that a witness was telling the truth on a
specific occasion. People v. Wittrein, 221 P.3d
1076, 1081 (Colo. 2009) (citing People v. Eppens,
979 P.2d 14, 17 (Colo. 1999)); see United States v.
Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998)
("Testimony regarding a witness' credibility is
prohibited unless it is admissible as character
Thus, "experts may not offer their direct opinion on a
child victim's truthfulness or their opinion on whether
children tend to fabricate sexual abuse allegations."
Wittrein, 221 P.3d at 1081. Expert testimony that
children tend not to fabricate stories of sexual abuse is
"tantamount to [an expert] testifying that [a] child
victim was telling the truth about her allegations."
Id. at 1082 (citing
People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).
Although expert testimony is not permitted to bolster a
victim's credibility, an expert may testify concerning
whether a sexual assault victim's behavior or demeanor
was consistent with the typical behavior of victims of abuse.
People v. Glasser, 293 P.3d 68, 78 (Colo.App. 2011).
This type of testimony is admissible because it assists the
jury in understanding the victim's behavior after the
incident and explains why the victim acted the way he or she
did. People v. Relaford, 2016 COA 99, ¶28, 409 P.3d
490, 496. "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 ... is helpful and appropriate in cases of sexual
abuse of children...." Id. (quoting People
v. Whitman, 205 P.3d 371, 383 (Colo.App. 2007)).
Although this type of testimony "necessarily carrie[s]
with it the implication that the child's report of sexual
abuse was true," it is proper expert testimony because
it "aid[s] the jury in understanding the typicality of
reactions by young [victims] who have been subjected to
sexual abuse that might, under other circumstances, be
considered bizarre." Id. at ¶30, 409 P.3d at
496 (quoting People v. Morrison, 985 P.2d 1, 6
The admissibility of opinion testimony that assists the jury
in understanding a victim's behavior, however, does not
mean "that testimony of general characteristics of any
type is admissible to attack or support a witness's
credibility." Id. at ¶31, 409 P.3d at 496
(quoting People v. Cernazanu,2015 COA 122, ¶20, 410
P.3d 603, 606-07). Rather, opinion testimony of general
characteristics is admissible only if it "(1) relates to