[440]*440Opinion by
Judge RULAND.
Defendant, Marcus Seacrist, appeals the judgment of conviction entered upon a jury verdict finding him guilty of one count of sexual assault on a child. We affirm in part and remand the cause with directions.
On October 24, 1989, the victim, an 8-year-old daughter of defendant’s girlfriend, revealed to her therapist during a regularly scheduled therapy session that defendant had touched her in inappropriate places. The victim had been receiving therapy for, among other things, suspected sex abuse. Authorities were notified of the child’s allegations, and, upon further investigation, defendant was charged by information with four counts of sexual assault on a child.
I.
Defendant first contends that the trial court erroneously admitted the testimony of the victim’s seven-year-old sister. He raises two bases for the asserted error, but we find neither persuasive.
A.
Defendant first argues that the trial court applied the wrong standard in determining whether the victim’s sister was competent to testify. Specifically, defendant contends that the witness’ competency should have been evaluated under § 13 — 90—106(l)(b)(I), C.R.S. (1987 Repl.Yol. 6A), rather than the less demanding standard provided under § 13-90-106(l)(b)(II), C.R.S. (1987 Repl.Vol. 6A). Defendant claims that the latter statute is applicable only to child victims and not to other child witnesses. We agree with the trial court’s ruling.
Section 13-90-106(l)(b)(I) establishes the general principle that children under the age of ten are incompetent to testify if they “appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.” However, the General Assembly provided an exception to this standard in 1983 when it amended the statute by adding § 13-90-106(l)(b)(II).
Under this latter statute, a child may be competent to testify in sexual assault cases if “the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined.”
In determining the General Assembly’s intent in adopting this statute, we look first to its plain language, giving the statutory terms their commonly accepted and understood meaning. People v. Guenther, 740 P.2d 971 (Colo.1987). Applying this standard, we conclude that the plain language of the statute authorizes any child to testify in sexual assault cases if the child’s testimony satisfies the statutory requirements.
We find additional support for this conclusion in the presumption that the General Assembly was aware that qualifying language could be added to limit application of the statute to victims and that it would have done so if such had been its intent. See Commercial Federal Savings & Loan Ass’n v. Board of Equalization, 867 P.2d 17 (Colo.App.1993). In fact, two other statutes, also enacted in 1983, contained the requisite qualifying language by limiting application of the enactment to child victims of sexual assault only.
Thus, Colo.Sess.Laws 1983, ch. 168, § 13-25-129 at 629, as originally enacted, provided, in relevant part:
An out-of-court statement made by a child ... describing any act of sexual contact, intrusion, or penetration ... performed with, by, or on the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in criminal proceedings in which the child is a victim of an unlawful sexual offense.... (emphasis added)
Also, in Colo.Sess.Laws 1983, ch. 197, § 18-3-413 at 694, the General Assembly provided that a deposition may be “taken of the victim’s testimony and that the deposition be recorded and preserved on video tape” in sexual assault eases when the “victim is likely to be medically unavailable.” (emphasis added)
[441]*441Hence, in our view the trial court applied the correct standard in determining whether the child witness here should be permitted to testify.
B.
We also reject defendant’s argument that, even under the more relaxed standard established in § 13 — 90—106(l)(b)(II), the child-witness was not competent to testify.
The determination of a child’s competency to testify is a decision addressed to the discretion of the trial court, and its resolution of that issue may not be disturbed on appeal absent a determination that this discretion has been abused. People v. Vialpando, 804 P.2d 219 (Colo.App.1990).
While we might have determined the question differently, we are unable to conclude that the trial court abused its discretion in finding that the child was competent to testify under § 13 — 90—106(l)(b)(II). Considering that the witness was a child of approximately six years of age at the time of the competency hearing, we conclude that there is evidence to support the finding that she was able to describe, in language appropriate for her age, what she observed. Specifically, she testified to having seen clothes on the floor while looking underneath a door at the time the assault occurred, to then opening the door and peeking in to see the defendant on top of the victim, and to then telling her younger sister what she had seen.
While we agree that other language used by the witness such as “sex abuser” does not appear to be age appropriate, there is no statutory requirement that all of the child’s testimony meet the standard. Hence, we are unable to conclude that the trial court abused its discretion in deeming the child-witness competent.
II.
Defendant next asserts that the trial court erred in allowing a defense witness to testify on cross-examination about an argument the witness had with defendant. Defendant claims this was error because the testimony revealed prior bad acts of defendant and suggested that he had a criminal charge pending. Again, we find no reversible error.
Cross-examination by questions that focus on the motive of a witness are generally permitted, and evidence tending to impeach the witness’ testimony or reflect bias may be allowed. People v. Walker, 666 P.2d 113 (Colo.1983).
Here, on cross-examination, the witness denied being afraid of defendant. The witness also denied being knocked down by defendant during an argument between defendant and his girlfriend.
Given these answers, the prosecution was entitled to present extrinsic evidence of remarks the witness made to a 911 dispatcher which contradicted her prior testimony. See People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976).
Because the trial court limited the questions to those relevant to the motive and credibility of the witness, there was no abuse of discretion in permitting this cross-examination.
III.
Free access — add to your briefcase to read the full text and ask questions with AI
[440]*440Opinion by
Judge RULAND.
Defendant, Marcus Seacrist, appeals the judgment of conviction entered upon a jury verdict finding him guilty of one count of sexual assault on a child. We affirm in part and remand the cause with directions.
On October 24, 1989, the victim, an 8-year-old daughter of defendant’s girlfriend, revealed to her therapist during a regularly scheduled therapy session that defendant had touched her in inappropriate places. The victim had been receiving therapy for, among other things, suspected sex abuse. Authorities were notified of the child’s allegations, and, upon further investigation, defendant was charged by information with four counts of sexual assault on a child.
I.
Defendant first contends that the trial court erroneously admitted the testimony of the victim’s seven-year-old sister. He raises two bases for the asserted error, but we find neither persuasive.
A.
Defendant first argues that the trial court applied the wrong standard in determining whether the victim’s sister was competent to testify. Specifically, defendant contends that the witness’ competency should have been evaluated under § 13 — 90—106(l)(b)(I), C.R.S. (1987 Repl.Yol. 6A), rather than the less demanding standard provided under § 13-90-106(l)(b)(II), C.R.S. (1987 Repl.Vol. 6A). Defendant claims that the latter statute is applicable only to child victims and not to other child witnesses. We agree with the trial court’s ruling.
Section 13-90-106(l)(b)(I) establishes the general principle that children under the age of ten are incompetent to testify if they “appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.” However, the General Assembly provided an exception to this standard in 1983 when it amended the statute by adding § 13-90-106(l)(b)(II).
Under this latter statute, a child may be competent to testify in sexual assault cases if “the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined.”
In determining the General Assembly’s intent in adopting this statute, we look first to its plain language, giving the statutory terms their commonly accepted and understood meaning. People v. Guenther, 740 P.2d 971 (Colo.1987). Applying this standard, we conclude that the plain language of the statute authorizes any child to testify in sexual assault cases if the child’s testimony satisfies the statutory requirements.
We find additional support for this conclusion in the presumption that the General Assembly was aware that qualifying language could be added to limit application of the statute to victims and that it would have done so if such had been its intent. See Commercial Federal Savings & Loan Ass’n v. Board of Equalization, 867 P.2d 17 (Colo.App.1993). In fact, two other statutes, also enacted in 1983, contained the requisite qualifying language by limiting application of the enactment to child victims of sexual assault only.
Thus, Colo.Sess.Laws 1983, ch. 168, § 13-25-129 at 629, as originally enacted, provided, in relevant part:
An out-of-court statement made by a child ... describing any act of sexual contact, intrusion, or penetration ... performed with, by, or on the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in criminal proceedings in which the child is a victim of an unlawful sexual offense.... (emphasis added)
Also, in Colo.Sess.Laws 1983, ch. 197, § 18-3-413 at 694, the General Assembly provided that a deposition may be “taken of the victim’s testimony and that the deposition be recorded and preserved on video tape” in sexual assault eases when the “victim is likely to be medically unavailable.” (emphasis added)
[441]*441Hence, in our view the trial court applied the correct standard in determining whether the child witness here should be permitted to testify.
B.
We also reject defendant’s argument that, even under the more relaxed standard established in § 13 — 90—106(l)(b)(II), the child-witness was not competent to testify.
The determination of a child’s competency to testify is a decision addressed to the discretion of the trial court, and its resolution of that issue may not be disturbed on appeal absent a determination that this discretion has been abused. People v. Vialpando, 804 P.2d 219 (Colo.App.1990).
While we might have determined the question differently, we are unable to conclude that the trial court abused its discretion in finding that the child was competent to testify under § 13 — 90—106(l)(b)(II). Considering that the witness was a child of approximately six years of age at the time of the competency hearing, we conclude that there is evidence to support the finding that she was able to describe, in language appropriate for her age, what she observed. Specifically, she testified to having seen clothes on the floor while looking underneath a door at the time the assault occurred, to then opening the door and peeking in to see the defendant on top of the victim, and to then telling her younger sister what she had seen.
While we agree that other language used by the witness such as “sex abuser” does not appear to be age appropriate, there is no statutory requirement that all of the child’s testimony meet the standard. Hence, we are unable to conclude that the trial court abused its discretion in deeming the child-witness competent.
II.
Defendant next asserts that the trial court erred in allowing a defense witness to testify on cross-examination about an argument the witness had with defendant. Defendant claims this was error because the testimony revealed prior bad acts of defendant and suggested that he had a criminal charge pending. Again, we find no reversible error.
Cross-examination by questions that focus on the motive of a witness are generally permitted, and evidence tending to impeach the witness’ testimony or reflect bias may be allowed. People v. Walker, 666 P.2d 113 (Colo.1983).
Here, on cross-examination, the witness denied being afraid of defendant. The witness also denied being knocked down by defendant during an argument between defendant and his girlfriend.
Given these answers, the prosecution was entitled to present extrinsic evidence of remarks the witness made to a 911 dispatcher which contradicted her prior testimony. See People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976).
Because the trial court limited the questions to those relevant to the motive and credibility of the witness, there was no abuse of discretion in permitting this cross-examination.
III.
Defendant next contends that the trial court erred in not following the test concerning the admissibility of other-crime evidence set forth in People v. Spoto, 795 P.2d 1314 (Colo.1990) before allowing a physician to testify that the sexual assault had occurred more than once. Defendant also argues that even if this evidence were admissible, the trial court erred in not providing a limiting instruction to the jury in accordance with the holding in People v. Garner, 806 P.2d 366 (Colo.1991). We disagree.
Because no contemporaneous objection was made to the admission of this evidence, the plain error standard of review applies. Espinoza v. People, 712 P.2d 476 (Colo.1985).
In People v. Spoto, supra, our supreme court established a four-part analysis to determine whether evidence of prior acts is admissible. However, under some circumstances, it is unnecessary either to apply that analysis or to provide limiting instructions to [442]*442the jury. See People v. Lindsey, 805 P.2d 1134 (Colo.App.1990). Specifically, comments regarding events surrounding a crime that are relevant to establish the context in which the crime was committed are admissible, even if such indicate the commission of unrelated offenses. People v. Tauer, 847 P.2d 259 (Colo.App.1993); People v. Lindsey, supra.
Here, the physician examined the victim shortly after the assault and testified about the victim’s physical condition at the time. During his testimony, the physician gave an expert opinion about how recently the victim had been assaulted and how often it had occurred.
Statements regarding the condition of the victim were relevant to understand, the context in which the crime was committed. Hence, we conclude that the doctor’s testimony was admissible without application of the Spoto analysis and that no limiting instruction was required. Thus, no error, much less plain error, appears.
We have considered and find no merit in defendant’s similar contentions regarding the testimony of the victim and a therapist.
IV.
We also reject defendant’s contention that the trial court erred in not striking a hearsay statement included in an answer by the victim’s therapist to the effect that the victim stated to the therapist that it was “real important that I tell the truth.”
Even if we assume that the victim’s statement was not admissible to establish her state of mind pursuant to CRE 803(3), in the context of the therapist’s other testimony as well as the other evidence presented at trial, this statement was insignificant. Thus, we view the error, if any, as harmless. CRE 103(a).
V.
Finally, defendant contends that the trial court violated his rights under the due process clauses of the United States and Colorado constitutions, as well as his rights of confrontation and cross-examination, by failing to provide all of the victim’s mental health records authorized by the court’s pretrial order. Specifically, defendant argues that exculpatory evidence contained in the pages of the mental health records not furnished to him could have been used in his defense to present alternative suspects to the jury such as a former stepfather. Defendant also complains that cross-examination of the victim was impeded, and that he was unable to present potentially exculpatory evidence from a therapist concerning the possibility of sexual contact with the victim by a peer. We are unable to resolve this issue based upon the record before us.
The record reflects that the mental health records in question were first submitted to the trial court for an in camera inspection. Based upon that review, the trial court entered an order defining what topics addressed in the records should be made available to defense counsel. The court also organized the documents into two separate stacks representing those which should be produced and those which should not. However, some of the documents placed in the “not provided to defendant” category should, in fact, have been furnished to counsel by the terms of the court’s order. The error was discovered for the first time by appellate defense counsel in reviewing the record certified to this court.
Initially, we reject the prosecution’s suggestion that the record is unclear on what documents were furnished to defendant and what were not. The pertinent volume of the record was prepared and certified by the clerk of the court, the court’s notation and signature on two of the documents indicate which records were produced and which were not, and the various documents are not arranged in any manner as to suggest any error by the clerk in preparing the record.
Under these circumstances, and absent an affirmative showing by the prosecution that the certified record is not correct, we must accept the record on appeal as filed. See C.A.R. 10(e); see also Powell v. Hart, 854 P.2d 1266 (Colo.1993) (if prosecution contends that defendant misstated facts on appeal, it is incumbent upon the prosecution to present the facts accurately).
[443]*443The defendant contends, and the prosecution concedes, that certain of the records not produced contain additional information which support an “alternate suspect” theory relative to the victim’s former stepfather as well as a possibility that the victim may have been involved in sexual contact with a peer. However, the limited record now before us suggests that the former stepfather may have been incarcerated at all times relevant to the offense. Similarly, we are unable to determine from the record standing alone whether any credible evidence exists as to sexual contact with a peer.
Hence, we conclude that the case must be remanded on this issue for a hearing to determine whether the failure to produce the records constitutes harmless error beyond a reasonable doubt. See Topping v. People, 793 P.2d 1168 (Colo.1990).
The cause is remanded for further proceedings concerning the medical records and for ruling by the trial court as to defendant’s constitutional challenge to the treatment of those records. If no constitutional error is found, then the judgment of conviction stands affirmed, subject to defendant’s right to appeal that ruling. If reversible error is found by the trial court, then the judgment is reversed and defendant must be accorded a new trial.
REED, J., concurs.
BRIGGS, J., concurs in part and dissents in part.