Peo v. Cejudo-Arredondo

• Court: Colorado Court of Appeals
• Decided: October 7, 2021
• Docket: 18CA0482
• Status: Unknown

Opinion

18CA0482 Peo v Cejudo-Arredondo 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA0482

El Paso County District Court No. 16CR6534

Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ramon Cejudo-Arredondo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE J. JONES

Freyre and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Ryan A. Crane, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Ramon Cejudo-Arredondo, appeals the judgment of

conviction entered on jury verdicts finding him guilty of various

charges of sexual assault on a child and sexual assault on a child

(position of trust) and a number of sentence enhancers. We affirm.

I. Background

¶ 2 Cejudo-Arredondo’s wife provided child care for a number of

children, including the victims in this case, sisters L.V. and H.V. At

the time, L.V. was eight years old and H.V. was six years old.

¶ 3 Shortly after L.V. and H.V.’s mother stopped taking her

daughters to “Nana,” as she was known to the girls and their

mother, L.V. and H.V. told their mother that Cejudo-Arredondo,

whom they knew at “Tata,” had sexually abused them on many

occasions while they were in his house and van.

¶ 4 The victims’ mother contacted law enforcement. A forensic

interviewer, Deborah Paton, interviewed L.V., and a different

forensic interviewer, Beth Kirk-Small, interviewed H.V. Following

an investigation, the People charged Cejudo-Arredondo with

numerous sex crimes.

¶ 5 Both victims testified at trial, as did the forensic interviewers,

investigating officers, the victims’ mother, a forensic medical

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examiner, and a “cold” (or “generalized,” see People v. Cooper, 2021

CO 69, ¶ 1 n.1) expert in “victim-offender dynamics,” Gayle

Christensen. Cejudo-Arredondo’s theory of defense was that L.V.

and H.V. had made up their allegations because they didn’t want to

be in day care.

¶ 6 A jury convicted Cejudo-Arredondo of most, but not all, of the

charges.

II. Discussion

¶ 7 Broadly stated, Cejudo-Arredondo makes two contentions on

appeal: (1) certain testimony by the forensic interviewers and the

cold expert impermissibly bolstered the victims’ credibility and (2)

the prosecutor said things in opening statement and closing

argument that ran afoul of various limitations on prosecutorial

conduct. Cejudo-Arredondo also argues that even if none of the

errors individually warrants reversal, they do cumulatively. We

reject all of these contentions.

A. Expert Testimony

¶ 8 A witness may not testify that another witness told the truth

on a particular occasion. People v. Wittrein, 221 P.3d 1076, 1081

(Colo. 2009). This prohibition applies, of course, to cases involving

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alleged sexual assaults on children and to “both direct and indirect

implications of a child’s truthfulness.” Venalonzo v. People, 2017

CO 9, ¶ 32.

¶ 9 With respect to expert testimony in such cases, Colorado

appellate courts have distinguished between testimony about

typical or at least not uncommon behavior of children claiming to

have been sexually assaulted — which is permissible to educate

jurors, particularly with respect to conduct that might seem

counterintuitive — and testimony that, even by implication, conveys

the expert’s opinion that the child was telling the truth about

having been assaulted — which is impermissible. Compare People

v. Fasy, 829 P.2d 1314, 1315-17 (Colo. 1992) (expert’s testimony

that sexual assault can cause post-traumatic stress disorder and

the child suffered from post-traumatic stress disorder was

admissible), and People v. Short, 2018 COA 47, ¶¶ 13-20 (testimony

of a cold expert who answered hypothetical questions matching the

circumstances of the case was admissible), and People v. Rail, 2016

COA 24, ¶¶ 59-72 (cold expert’s testimony about certain behavior of

child victims that matched circumstances of the case was

admissible), and People v. Morrison, 985 P.2d 1, 3-5 (Colo. App.

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1999) (cold expert’s testimony about various aspects of sexual

abuse and a hypothetical that matched the facts of the case was

admissible), with Venalonzo, ¶¶ 35-36 (forensic interviewer’s

testimony that the alleged victims’ behavior was common to that of

other child assault victims she had interviewed and that some

forensic interviews had led to the dropping of charges was

inadmissible), and Wittrein, 221 P.3d at 1081-82 (expert’s testimony

that an eight-year-old child is unlikely to hyper-report sexual abuse

allegations for the purpose of being seen as a victim was

inadmissible), and People v. Eppens, 979 P.2d 14, 16-19 (Colo.

1999) (expert’s testimony that child’s report of a sexual assault was

“sincere” was inadmissible), and People v. Gaffney, 769 P.2d 1081,

1083, 1086-88 (Colo. 1989) (expert’s testimony that child’s

description of events was “very believable” was inadmissible;

distinguishing cases involving expert testimony that the victim

behaved in a way typical of sexual assault victims), and People v.

Snook, 745 P.2d 647, 648-69 (Colo. 1987) (social worker’s testimony

that children tend not to fabricate stories of sexual abuse was

inadmissible), and People in Interest of J.R., 2021 COA 81, ¶¶ 14-25

(doctor’s testimony that child had suffered sexual abuse was

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inadmissible), and People v. Relaford, 2016 COA 99, ¶¶ 18-34

(therapist’s testimony that children rarely lie about having been

sexually abused by an adult, and that, in her experience, children

lie about such things only in two particular circumstances was

inadmissible).

¶ 10 Sometimes it is relatively easy to determine when an expert’s

testimony about child sex assault crosses the line. Sometimes it

isn’t. It may be particularly difficult to make that call when the

testimony is by an expert who testifies as to both the typical (or

perhaps not uncommon) behavior of children alleging sexual

assault and how the victim in the case behaved. What is clear is

that an expert’s testimony in this regard isn’t inadmissible merely

because it inadvertently bolsters the child’s credibility. Relaford, ¶

30. Nor is testimony that (1) victims typically behave in certain

ways and (2) the alleged victim behaved consistently with such

behavior necessarily inadmissible. Glasser, 293 P.3d at 78. And

even more clearly, testimony about the typical behavior of child sex

assault victims isn’t inadmissible merely because the alleged victim

exhibited such typical behavior. Were the rule otherwise, testimony

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about typical victim behavior would never be admissible. That

obviously isn’t the law.

¶ 11 In this case, Cejudo-Arredondo challenges various parts of

Paton, Kirk-Small, and Christensen’s testimony, none of which his

trial counsel objected to. We conclude that the district court didn’t

abuse its discretion, see Venalonzo, ¶ 15, by admitting any of that

testimony, for, as they pertain to the particular aspects of the

challenged testimony, one or more of the following reasons.

• Much of the challenged testimony was about the typical

behavior of children whom the witnesses had

interviewed.

• The fact the victims displayed behavior typical of children

claiming sexual assault, either in their interviews —

which were shown to the jury — or their trial testimony,

didn’t render the experts’ testimony inadmissible.

• The experts spoke in terms of children whom they had

interviewed, without characterizing them all as victims.

• None of the experts said or implied that they believed L.V.

or H.V.

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• Some of the testimony simply related what the experts —

and therefore the jurors — saw in the video-recordings of

the forensic interviews. That wasn’t expert opinion.

• Some of the testimony was merely about the children’s

responsiveness and demeanor during the interviews (for

example, that L.V. was able to describe well how she felt

during the alleged assaults).

• Cejudo-Arredondo mischaracterizes or takes out of

context some of the challenged testimony.

¶ 12 In sum, though there is a line that experts may not cross, we

aren’t persuaded that any of the three experts crossed that line.

Though their testimony may have incidentally buttressed L.V. and

H.V.’s credibility, that isn’t enough for us to conclude that their

testimony was inadmissible.

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We also conclude that, given the murkiness of some of the case

law on this question and the nature of the challenged testimony,

there was no obvious error. See Hagos v. People, 2012 CO 63, ¶ 14

(plain error must be obvious).

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B. Prosecutor’s Statements

¶ 13 We assess a prosecutor’s alleged improper statements in two

parts. First, we determine whether the statements were improper,

taking into account the totality of the circumstances. Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). Second, if any statement

was improper, we determine whether it warrants reversal, applying

the appropriate standard of reversal. Id. In this case, because

defense counsel didn’t object to any of the statements challenged on

appeal, that standard is plain error.

¶ 14 Cejudo-Arredondo contends that during opening statement

and closing argument, the prosecutor offered his personal opinions

as to the evidence and Cejudo-Arredondo’s guilt, attempted to

inflame the jurors’ passions against him, misstated and shifted the

burden of proof, suggested knowledge of information not in

evidence, and denigrated the defense.

¶ 15 We tend to agree with Cejudo-Arredondo’s argument that the

prosecutor’s suggestion that L.V. and H.V. would continue to

disclose additional details of the assault for “the rest of their li[ves]”

was likely improper. As well, the prosecutor perhaps said

something unsupported by the evidence when he said, “What

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[children are] really lacking is usually the ability to come up with

some complex evil scheme and motive.” But aside from these two

arguably improper remarks, we don’t see anything improper in the

statements Cejudo-Arredondo challenges. With respect to the

remainder of the challenged statements, Cejudo-Arredondo takes

them out of context, they are comments based on evidence (and

reasonable inferences therefrom) introduced at trial, Cejudo-

Arredondo mischaracterizes and twists them, and/or they are

permissible rhetorical flourish. See People v. Maloy, 2020 COA 71,

¶ 61 (a prosecutor has wide latitude to argue based on facts in

evidence and reasonable inferences drawn from those facts); People

v. Allee, 77 P.3d 831, 837 (Colo. App. 2003) (within limits, a

prosecutor may employ rhetorical devices and engage in oratorical

embellishment and metaphorical nuance).

¶ 16 Assuming the two instances of improper statements were

obvious, we aren’t persuaded that they so undermined the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the convictions. Hagos v. People, 2012 CO 63, ¶ 14.

The remarks were fleeting and the jury acquitted Cejudo-Arredondo

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of some counts, indicating that the jury wasn’t swayed to decide the

charges on some improper basis.

C. Cumulative Error

¶ 17 To reverse based on cumulative error, we would have to

conclude that “the cumulative effect of [multiple] errors and defects

substantially affected the fairness of the trial proceeding and the

integrity of the fact-finding process.” Howard-Walker v. People,

2019 CO 69, ¶ 24. As discussed above, we don’t believe the two

possibly improper remarks meet that standard.

III. Conclusion

¶ 18 We affirm the judgment.

JUDGE FREYRE and JUDGE TOW concur.