The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY September 5, 2019
2019COA138
No. 16CA1057, Peo v. Marx — Crimes — Sexual Assault; Evidence — Opinions and Expert Testimony — Testimony by Experts
A division of the court of appeals decides that an expert
witness in a sexual assault case may not testify 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.
The division further decides that, to obtain an evidentiary hearing
under Colorado’s rape shield statute, § 18-3-407, C.R.S. 2018, a
defendant need not prove that the accuser’s prior allegations of
sexual assault were “false in fact,” but, rather, that the defendant
could establish at the hearing the falsity of the prior allegations by a
preponderance of the evidence. COLORADO COURT OF APPEALS 2019COA138
Court of Appeals No. 16CA1057 La Plata County District Court No. 14CR457 Honorable William L. Herringer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Edmund Peter Marx,
Defendant-Appellant.
JUDGMENT REVERSED
Division IV Opinion by JUDGE LIPINSKY Román, J., concurs J. Jones, J., specially concurs
Announced September 5, 2019
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, 400 A.2d 48, 51 (N.H. 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
1 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
• 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.
2 ¶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.”
3 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).
4 ¶ 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.
5 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)).
¶ 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
6 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 issue apart from credibility
and (2) only incidentally tends to corroborate a witness’s
testimony.” Id.
D. The Expert’s Testimony on Whether Children and Teenagers Tend to Fabricate Sexual Abuse Allegations Was an Impermissible Expert Opinion
¶ 17 Vanino’s testimony regarding the small percentage of children
and teenagers who make false allegations of sexual assault
improperly bolstered the accuser’s credibility. Vanino’s opinion that
only two to six percent “of sexual assaults that are reported to the
police [by children and teenagers] turn out to be false” did not relate
7 to any issue other than the accuser’s truthfulness. The practical
result of Vanino’s testimony was to suggest to the jury that the
accuser was “almost certainly telling the truth.” See Snook, 745
P.2d at 649.
¶ 18 Vanino could have explained the typical demeanor and
behavioral traits of a sexually abused child or teenager, which
would have allowed the jury to gain a better understanding of the
accuser’s actions after Marx allegedly sexually assaulted her. See
Relaford, ¶ 32, 409 P.3d at 496; cf. Morrison, 985 P.2d at 6
(“[S]ubstantially all of th[e] expert’s testimony was properly received
. . . to aid the jury in understanding the typicality of reactions by
[children] who have been subjected to sexual abuse.”). This type of
testimony would not have told the jurors what result to reach and
thus would have been permissible. See Relaford, ¶ 33, 409 P.3d at
496.
¶ 19 But Vanino’s testimony about the percentage of children and
teenagers who fabricate sexual assault allegations did not serve any
purpose other than to attempt to influence the jurors’ determination
of the accuser’s credibility. See id. at ¶ 34, 409 P.3d at 496; see
also Snook, 745 P.2d at 649 (“[T]he jury’s only conceivable use of
8 [the] testimony would be as support for the [victims’] truthful
character[s].”). The testimony did not aid the jury in deciding the
case because it did not provide information whether, in this case,
the allegations of sexual assault were truthful. See Relaford, ¶ 31,
409 P.3d at 496.
E. The Expert’s Testimony on the Likelihood of Becoming a Victim of Sexual Assault Was Also Impermissible
¶ 20 Similarly, the trial court should not have allowed Vanino to
testify regarding the percentages of women and children who are
victims of sexual assault. Vanino’s testimony that “[o]ne in four
women are [sic] sexually assaulted in a lifetime, most of whom are
sexually assaulted under the age of 18,” and that “around 50
percent of children . . . are abused by a family member,” was
irrelevant because it did not have “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401.
¶ 21 The testimony was also inadmissible to the extent it suggested
to the jury that the accuser’s claims were truthful because of the
percentage of females under the age of eighteen who are sexually
9 assaulted. See Snook, 745 P.2d at 649. Telling the jury that one in
four females is sexually assaulted and that fifty percent of children
are abused by family members could have served no purpose other
than to attempt to influence the jurors’ credibility determination.
See Relaford, ¶ 34, 409 P.3d at 496.
F. Conclusion
¶ 22 The trial court erred in allowing Vanino to testify that children
and teenagers rarely fabricate allegations of sexual abuse and
regarding the incidence of sexual abuse. The error was “obvious” in
light of the well-settled case law that experts may not offer opinions
on a witness’s credibility. See Pollard, ¶ 41, 307 P.3d at 1133
(holding that an error was obvious “[i]n light of the well-settled legal
principle upon which [the] rule is based, the prior references in
Colorado case law to the rule, and the uniformity with which
numerous other courts have embraced the rule”). And the trial
court’s error in allowing Vanino to offer her statistical opinions was
“substantial” because it undermined Marx’s defense premised on
the accuser’s alleged lack of credibility. See id. at ¶ 42, 307 P.3d at
1133 (concluding that error was “substantial” because it created
serious doubt regarding the reliability of the judgment of
10 conviction). The accuser’s credibility was particularly critical
because the prosecution introduced no physical evidence of the
alleged sexual assaults, the accuser and Marx were the only
witnesses to the incidents, and Marx recanted his confession.
¶ 23 Thus, the trial court’s error in admitting Vanino’s statistical
opinions requires reversal of Marx’s judgment of conviction,
whether under plain error or another standard of review.
III. The Trial Court Correctly Excluded the Neighbor’s Testimony Regarding the Accuser’s Alleged Character for Untruthfulness
A. The Neighbor’s Testimony
¶ 24 Marx sought to introduce testimony from a neighbor regarding
the accuser’s alleged character for untruthfulness. The neighbor
said he had known the accuser and her family for more than twenty
years, and that Marx had worked for the neighbor at his ranch.
(The neighbor’s testimony was video-recorded because he was
unavailable at trial.)
¶ 25 The neighbor’s testimony focused on the accuser’s behavior.
He said the accuser had “created incidents” while at the neighbor’s
ranch. Specifically, he said the accuser had antagonized the
11 neighbor’s dogs by bringing cats onto the property and had gotten
in her father’s way while he was working to gain his attention.
¶ 26 The neighbor said his opinion about the accuser’s alleged lack
of truthfulness was based, in part, on her denial that she had
mistreated the dogs. He did not provide any other examples of the
accuser’s false statements. Although the neighbor characterized
the accuser as “untruthful” and “untrustworthy,” he refused to call
her a “liar.”
¶ 27 The trial court ruled that the defense could not introduce the
neighbor’s testimony that the accuser was “sneaky and attention
seeking,” had abused animals, or was “untrustworthy.” The trial
court, however, initially allowed the neighbor’s opinion testimony
regarding the accuser’s character for untruthfulness.
¶ 28 The scope of the neighbor’s testimony shrank further during
trial. The prosecutor sought permission to remove his entire
cross-examination from the portions of the video shown to the jury.
The court granted the prosecutor’s request. The court reasoned
that the neighbor’s statements about the accuser’s alleged lack of
truthfulness were intertwined with his inadmissible testimony
regarding her mistreatment of the dogs. By authorizing the
12 redaction of the cross-examination, the trial court removed from the
portion of the video shown to the jury all of the neighbor’s
references to the accuser’s lack of truthfulness.
¶ 29 Because, at retrial, Marx may again seek to introduce the
neighbor’s testimony regarding the accuser’s alleged
untruthfulness, we consider whether the trial court erred in
excluding that testimony.
B. Standard of Review
¶ 30 We review the trial court’s decision to exclude evidence for an
abuse of discretion. Salas, ¶ 30, 405 P.3d at 453. However, we
review de novo a trial court’s interpretation of a statute or rule
governing the admissibility of evidence. Id.
C. Evidence of a Witness’s Character for Untruthfulness
¶ 31 A witness’s credibility may be attacked through character
evidence under CRE 608, which states, in relevant part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning the character for truthfulness or untruthfulness of another
13 witness as to which character the witness being cross-examined has testified . . . .
CRE 608(b)(2). “The purpose of [the] rule is to allow specific
instances of conduct to be admitted to impeach a witness’s
character for truthfulness. Such evidence allows the jury to
evaluate the witness’s capacity for truthfulness as the rule
provides.” McGill v. DIA Airport Parking, LLC, 2016 COA 165, ¶ 21,
395 P.3d 1153, 1157. The evidence must address the witness’s
truthful character, and not focus on her veracity on a particular
occasion. People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986).
Also, “the trial court should exclude evidence that has little bearing
on credibility, places undue emphasis on collateral matters, or has
the potential to confuse the jury.” People v. Knight, 167 P.3d 147,
153 (Colo. App. 2006).
D. The Neighbor’s Testimony Regarding the Accuser’s Alleged Untruthfulness Was Inadmissible
¶ 32 The trial court correctly excluded the neighbor’s statements
about the accuser’s alleged untruthfulness for three reasons.
¶ 33 First, the testimony focused on issues having nothing to do
with credibility. It primarily rested on the accuser’s behavior
towards the neighbor’s dogs and her interference with her father’s
14 work at the neighbor’s ranch. The neighbor provided only one
example of the accuser’s alleged untruthfulness: when asked what
she was doing to the dogs, she responded, “Oh, nothing” and
“pretend[ed] as if nothing happened.” And because the neighbor
could point to only a single instance of the accuser’s alleged
untruthfulness, his testimony did not speak to her character
generally. See Koon, 724 P.2d at 1370.
¶ 34 Second, the neighbor’s testimony about the accuser was of
dubious relevance. He admittedly could only speculate “as to how
she is today,” as he had not seen the accuser since she was
fourteen — two years before Marx allegedly sexually assaulted her.
And the neighbor’s statements about the accuser’s untruthfulness
were equivocal. At least twice he denied the accuser was a “liar,”
although he called her “untruthful, deceitful, and manipulative.”
the neighbor did not explain why he believed she was not a liar, or
the distinction in his mind between lying and being untruthful.
¶ 35 Third, a child’s assertion that she was “doing nothing” when
confronted about misbehavior is not probative of a character for
untruthfulness. It is not the type of falsehood that is admissible
evidence of a character for untruthfulness under Rule 608. To hold
15 otherwise would invite a flood of testimony attacking witnesses who,
when children, had engaged in nothing more sinister than the
time-worn meaningless exchange: “What did you do? Nothing.”
See, e.g., Robert Paul Smith, Where Did You Go? Out. What Did You
Do? Nothing. (1957). Similarly, testimony that a witness looked
guilty by “pretend[ing] as if nothing happened” is “not a direct or
even indirect comment on defendant’s character for truthfulness or
untruthfulness, nor . . . a comment on his truthfulness on a
particular occasion.” People v. Acosta, 2014 COA 82, ¶ 72, 338
P.3d 472, 485.
E. Conclusion
¶ 36 For these reasons, we conclude that the neighbor’s testimony
does not satisfy the test for admitting evidence of a witness’s
character for untruthfulness.
IV. The Trial Court Erred in Not Conducting a Hearing on the Admissibility of the Evidence of the Accuser’s Alleged History of False Accusations of Sexual Assault
A. Marx’s Offer of Proof of Evidence Regarding the Accuser’s Alleged Prior False Accusations of Sexual Assault
¶ 37 Marx filed a pretrial motion under subsection (2) of the Rape
Shield Statute for a hearing on the admissibility of evidence
16 allegedly showing that the accuser had a history of making false
accusations of sexual assault. In support of the motion, Marx made
an offer of proof through an affidavit of Grady King, an investigator
at the Durango Regional Office of the Colorado State Public
Defender (the Affidavit). The Affidavit described the accuser’s
alleged false reports of sexual assault against classmates.
¶ 38 The trial court concluded that the Affidavit “does not establish
by a preponderance of the evidence that [the accuser’s past]
allegations were false in fact and based upon that, I don’t think that
the Court is required to hold an evidentiary hearing.”
¶ 39 Although the court referred to the preponderance of the
evidence standard for establishing the admissibility of evidence
showing that a victim has a history of false accusations of sexual
assault, it did not apply that standard. Rather, the court required
Marx to surmount an “incredibly high hurdle” to prove entitlement
to a hearing on the admissibility of the evidence of the accuser’s
alleged false accusations:
[T]he question is did the defense demonstrate to the Court through its offer of proof in the affidavit by a preponderance of the evidence that the prior allegations are false in fact, which . . . I think it’s an incredibly high hurdle
17 that the legislature has set, but . . . I think there’s probably also good reason . . . for the legislature setting the hurdle that high, and that’s the standard that the Court has to follow.
So, the court concluded, without conducting a hearing, that Marx
could not introduce evidence of the accuser’s alleged history of false
reports of sexual assault. (The trial court allowed Marx to present
other evidence attacking the accuser’s credibility. That evidence is
not an issue in this appeal.)
¶ 40 We review a trial court’s determination of the admissibility of
evidence under the Rape Shield Statute for an abuse of discretion.
People v. Lancaster, 2015 COA 93, ¶ 35, 373 P.3d 655, 661 (citing
People v. Cook, 2014 COA 33, ¶ 34, 342 P.3d 539, 547). But, as
noted above, we review questions of statutory interpretation de
novo. See People v. Golden, 140 P.3d 1, 4 (Colo. App. 2005) (holding
that a trial court’s interpretation of the Rape Shield Statute is
reviewed de novo).
18 C. Offers of Proof and Evidentiary Hearings Under the Rape Shield Statute
¶ 41 Under the Rape Shield Statute, evidence of specific instances
of a victim’s prior sexual conduct are “presumed to be irrelevant” to
the criminal trial. § 18-3-407(1); see People v. Weiss, 133 P.3d
1180, 1185 (Colo. 2006). By limiting “fishing expeditions” into a
victim’s sexual history, the Rape Shield Statute advances the policy
goal of protecting victims from humiliating and public exposure of
intimate details of their lives absent a “preliminary showing that
evidence thus elicited will be relevant to some issue in the pending
case.” People v. McKenna, 196 Colo. 367, 371-72, 585 P.2d 275,
278 (1978). Defendants in sexual assault cases do not have a due
process right to introduce “irrelevant and inflammatory evidence.”
People v. Schmidt, 885 P.2d 312, 315 (Colo. App. 1994).
¶ 42 The Rape Shield Statute includes several exceptions to the
presumption that evidence of a victim’s sexual activities is
inadmissible. Lancaster, ¶ 36, 373 P.3d at 661. Under the
exception relevant to this case, “evidence that the victim . . . has a
history of false reporting of sexual assaults” is admissible, but only
if the evidence is relevant and material, and the defendant follows
19 the procedure set forth in the Rape Shield Statute for admission of
the evidence. § 18-3-407(2); see Lancaster, ¶ 36, 373 P.3d at 661.
¶ 43 The Rape Shield Statute requires a two-part procedure for
determining whether a defendant charged with sexual assault may
introduce evidence of the victim’s alleged history of falsely reporting
sexual assaults. First, the defendant must make an offer of proof
through a written motion and a supporting affidavit. § 18-3-
407(2)(a). The affidavit “must articulate facts which, if
demonstrated at the evidentiary hearing by a preponderance of the
evidence, would show that the alleged victim made multiple prior or
subsequent reports of sexual assault that were in fact false.”
Weiss, 133 P.3d at 1182.
¶ 44 Second, if the court finds that the defendant’s offer of proof is
sufficient, the defendant is entitled to an in camera pretrial
evidentiary hearing on the admissibility of the evidence of the
alleged false reporting.
¶ 45 These procedures
protect the victim’s privacy; allow the accused person to explore facts; enable the trial judge to determine in a pretrial hearing what shall be admitted or excluded at trial; and serve the state’s interest in prosecuting those accused of
20 sexual assault while affording defendants a fair opportunity to confront their accusers.
Id. at 1186.
1. The Offer of Proof
¶ 46 An offer of proof under the Rape Shield Statute is a preview of
the evidence a party is prepared to introduce at an evidentiary
hearing. It consists of allegations that the party’s attorney
represents would be proven if the court granted the hearing. State
v. Martinez, 991 A.2d 1086, 1094 (Conn. 2010). The purposes of an
offer of proof include “inform[ing] the court of the legal theory under
which the evidence is admissible,” advising “the trial judge of the
specific nature of the evidence so that the court can judge its
admissibility,” and creating “a record for appellate review.” Id.
(quoting State v. Payne, 917 A.2d 43, 49 n.5 (Conn. App. Ct. 2007));
see Itin v. Ungar, 17 P.3d 129, 136 (Colo. 2000) (“An offer of proof
must sufficiently inform the court of the nature and substance of
the proposed evidence both to enable the trial court to exercise its
discretion under the rules of evidence and to provide a basis for
appellate review.”); CRE 103(a)(2) (“In case the ruling is one
excluding evidence, the substance of the evidence was made known
21 to the court by offer or was apparent from the context within which
questions were asked”).
¶ 47 An offer of proof under the Rape Shield Statute typically
consists of a witness’s anticipated testimony, an explanation of the
purpose and relevance of the testimony, and a recitation of the facts
necessary to establish the testimony’s admissibility. Weiss, 133
P.3d at 1186-87. The defendant must “justify the trial court
holding an evidentiary hearing for the purpose of ascertaining
whether the alleged victim made multiple sexual assault reports
that were demonstrably false.” Id. at 1189.
¶ 48 Thus, a defendant is entitled to an evidentiary hearing under
the Rape Shield Statute if the proposed evidence would be sufficient
to establish, “by a preponderance of the evidence, at the in camera
evidentiary hearing that the alleged victim made multiple reports of
prior or subsequent sexual assault that were in fact false.” Id. at
1188. If the defendant does not satisfy this burden, the evidence of
the prior sexual assault claims is “irrelevant, immaterial, and
inadmissible in the case at trial.” Id. at 1189.
¶ 49 The preponderance of the evidence standard applies in
determining preliminary questions regarding the admissibility of
22 evidence. Vasquez v. People, 173 P.3d 1099, 1105 (Colo. 2007).
This standard directs the court to decide whether the existence of a
contested fact is “more probable than its nonexistence.” People v.
Taylor, 618 P.2d 1127, 1135 (Colo. 1980) (quoting Page v. Clark,
197 Colo. 306, 318, 592 P.2d 792, 800 (1979)). Proof “by a
preponderance of the evidence” requires that the evidence must
“preponderate over, or outweigh, evidence to the contrary.” City of
Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 37, 370 P.3d
157, 158 (quoting Mile High Cab, Inc. v. Colo. Pub. Utils. Comm’n,
2013 CO 26, ¶ 14, 302 P.3d 241, 246). It is not “an especially high
degree of proof.” Id. at ¶ 38, 370 P.3d at 168.
¶ 50 Further, a defendant cannot introduce evidence of the victim’s
purported history of false allegations of sexual assault under the
Rape Shield Statute unless the proposed evidence would establish
“that the alleged victim made multiple prior or subsequent reports
of sexual assault.” Weiss, 133 P.3d at 1182. A single false report is
not a “history of false reporting of sexual assaults.” Id. at 1187
(concluding that “the word ‘history’ means ‘[a]n established record
or pattern of behavior’” (quoting American Heritage Dictionary of the
English Language 833 (4th ed. 2000))).
23 2. The Evidentiary Hearing
¶ 51 If the defendant makes a sufficient offer of proof under the
Rape Shield Statute, at the subsequent evidentiary hearing, “to the
extent the facts are in dispute, the court may allow the questioning
of the victim or witness regarding the offer of proof made by the
moving party or otherwise allow a presentation of the offer of proof,
including but not limited to the presentation of witnesses.”
§ 18-3-407(2)(c).
At the conclusion of the hearing, . . . if the court finds that the evidence proposed to be offered . . . is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
§ 18-3-407(2)(e).
D. Marx Was Entitled to a Hearing to Determine the Admissibility of Evidence of the Accuser’s Alleged History of Falsely Reporting Sexual Assaults
¶ 52 The trial court applied the wrong standard in ruling that Marx
had to surmount an “an incredibly high hurdle” to prove
entitlement to a hearing under section 18-3-407(2). Although the
court referred to the preponderance of the evidence standard, it did
24 not merely misapply that standard to the facts. Rather, it held
Marx to a different, higher standard.
¶ 53 Contrary to the trial court’s ruling, Marx was not required to
prove at the offer of proof stage that the accuser’s prior allegations
of sexual assault were “false in fact.” Rather, he needed only to
show that, at an evidentiary hearing, he could establish the falsity
of the accuser’s prior accusations by the low preponderance of the
evidence standard. Weiss, 133 P.3d at 1189; Taylor, 618 P.2d at
1135; Lancaster, ¶ 40, 373 P.3d at 662.
¶ 54 Marx met his burden of proving entitlement to an evidentiary
hearing on the admissibility of evidence of the accuser’s alleged
false reporting because the Affidavit satisfied the Rape Shield
Statute’s offer of proof requirement. In the Affidavit, King made the
following sworn statements, among others:
• The accuser alleged that S.M., a boy at her school, had
sexually assaulted her at a public library. The accuser
told police that S.M.’s friends had been nearby and
laughed during the assault. But, when asked, the
accuser could not provide the names of any of those
friends. Mike Jaramillo, one of the accuser’s teachers,
25 did not believe the assault could have happened due to
the number of students who would have observed it.
• Jaramillo told police that the accuser “makes up stories
regularly” and that she had “accused another student of
touching her on the bus” during a field trip, which “was
investigated and found to be untrue.” In a later
interview, the accuser said she remembered “taking a
field trip on a school bus . . . but doesn’t remember
telling any of her teachers that one of her classmates
touched her inappropriately while they were on that bus.”
• The accuser alleged that S.M. forced her to give him oral
sex underneath the staircase at school and that S.M.
“has had sex with her under the stairs at school.” The
accuser gave three different and contradictory accounts
of these allegations to detectives and officers.
Additionally, a school security specialist, Steve Kerchee,
was unable to find any video footage of such incidents
from the surveillance camera in the hallways where the
sexual assaults had allegedly occurred.
26 • S.M. denied all of the accuser’s allegations and told
detectives “he did not do anything that [the accuser] said
he did.”
• Police saw text messages between the accuser and S.M.,
initiated by the accuser, after the first alleged sexual
assault. In the first exchange, the accuser said, “hey this
is [the accuser]” to which S.M. replied “hey.” On another
occasion, two days before school officials learned of the
allegations of sexual assault, the accuser sent S.M. a text
message asking how his orthodontist appointment went,
to which S.M. did not respond. The messages made no
reference to any sexual activity between the accuser and
S.M.
• During an interview, the accuser provided contradictory
information on the number of times and places where
S.M. had allegedly sexual assaulted her.
• Jaramillo said during an interview that he never saw the
accuser and S.M. together, or acting in a romantic way,
and that “he was pretty sure that [the accuser’s
allegation] wasn’t true.”
27 • Following a police investigation into the accuser’s
allegations, a detective concluded there was “no evidence
that a sexual assault occurred” and that, unless the
investigators found evidence corroborating the accuser’s
claims, the detective would close the case.
¶ 55 In describing the instances of the accuser’s alleged false
reports of sexual assault, Marx did not rely only on general denials
that the underlying sexual assaults had occurred, testimony that
the accuser had made only a single false accusation, or evidence
that the accuser’s accusations had not resulted in the filing of
charges. The Affidavit referenced other witnesses besides S.M. who
were prepared to testify to the falsity of the accuser’s accusations
and the school’s findings that the accuser had made false
allegations of sexual assault.
¶ 56 This case is distinguishable from Weiss, where the motion
requesting the evidentiary hearing rested solely on allegations that
no charges had been brought as a result of the victim’s reports of
sexual assault. Weiss, 133 P.3d at 1188-89. In that case, the
supreme court concluded that the lack of charges was an
28 insufficient offer of proof upon which a trial court could order an
evidentiary hearing. See id.
¶ 57 In sum, we conclude that the facts described in the Affidavit
were sufficient to establish that Marx could demonstrate at an
evidentiary hearing, by a preponderance of the evidence, the falsity
of the accuser’s multiple previous allegations of sexual assault. See
id. at 1189; see also State v. Manini, 659 A.2d 196, 204 (Conn. App.
Ct. 1995) (holding that the defendant’s offer of proof, supported by
medical records describing victim’s sexualized prior delusions and
hallucinations, was sufficient under the Rape Shield Statute to
require the court to conduct an evidentiary hearing on the
admissibility issue).
¶ 58 The trial court erred in holding that Marx was not entitled to
an evidentiary hearing under section 18-3-407(2) because he had
not shown, under an “incredibly high hurdle” standard of proof,
that the accuser’s prior allegations of sexual assault were “false in
fact.”
¶ 59 Accordingly, we conclude that Marx is entitled to an
evidentiary hearing under the Rape Shield Statute.
29 § 18-3-407(2)(c). At the hearing, Marx will be required to prove, by
a preponderance of the evidence, the facts set forth in the Affidavit
allegedly showing that the accuser had made “multiple prior or
subsequent reports of sexual assault [that] were in fact false.” See
Weiss, 133 P.3d at 1184.
V. Remaining Contentions
¶ 60 In light of our disposition of this appeal, and because the
remaining issues Marx raises on appeal may not recur in any
retrial, we do not address Marx’s other contentions of error.
VI. Conclusion
¶ 61 The judgment of conviction is reversed and the case is
remanded for further proceedings consistent with this opinion. On
remand, the trial court is instructed to conduct an evidentiary
hearing under section 18-3-407(2) to determine whether Marx can
establish, by a preponderance of the evidence, that evidence of the
accuser’s alleged history of falsely reporting sexual assaults is
admissible. We offer no opinion as to whether the evidence should
or should not be ruled admissible.
JUDGE ROMÁN concurs.
JUDGE J. JONES specially concurs.
30 JUDGE J. JONES, specially concurring.
¶ 62 I agree with the ultimate conclusions reached by the majority
on all issues. I write separately only because I disagree with the
majority’s path to the result on one of those conclusions.
¶ 63 The majority determines that in ruling on Marx’s motion under
the rape shield statute, the district court “applied the wrong
standard.” Given that the district court said it was applying the
preponderance of the evidence standard — which is the right
standard — I am uncomfortable with that determination,
notwithstanding the language to which the majority points. After
all, compared to the usual test for admitting evidence — mere
relevance — the statute does create a higher bar for admissibility. I
believe it is possible to read the district court’s comments in that
light.
¶ 64 Nonetheless, I believe that the district court misapplied the
standard and that, for the reasons articulated by the majority, Marx
is entitled to a hearing on his motion.