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People v. Marx

Court of Appeals of Colorado, Fourth Division

September 5, 2019

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Edmund Peter MARX, Defendant-Appellant.

         Rehearing Denied October 10, 2019.

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         La Plata County District Court No. 14CR457 Honorable William L. Herringer, Judge.

         Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.



         I. Introduction

         [¶1] 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.

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 a teenager.

         [¶5] 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.

         [¶6] 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

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• 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.

         [¶7] 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.

         II. The Trial Court Erred in Admitting the Expert's Statistical Testimony

         A. The Expert's Opinions on Sexual Assault Statistics

         [¶8] 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 member."

         B. Standard of Review

         [¶9] 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 446, 453.

         [¶10] 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 review.

         [¶11] 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).

         [¶12] "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)).

         C. Expert Testimony on Whether Children Tend to Fabricate Sexual Abuse Allegations and the Likelihood of Becoming a Victim of Sexual Assault

         [¶13] 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 evidence.").

         [¶14] 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

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People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).

         [¶15] 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 (Colo.App. 1999)).

         [¶16] 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 an ...

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