People v. Short

2018 COA 47, 425 P.3d 1208

• Court: Colorado Court of Appeals
• Decided: April 5, 2018
• Docket: 15CA1175
• Status: Published

Opinion

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 April 5, 2018

2018COA47

No. 15CA1175 People v. Short-15CA1175 — Evidence — Remainder of or Related Writings or Recorded Statements — Hearsay Exceptions — Attacking and Supporting Credibility of Declarant

Declining to follow People v. Davis, 218 P.3d 718 (Colo. App.

2008), a division of the court of appeals holds that a defendant’s

exculpatory statement to the police admissible under the rule of

completeness is not subject to impeachment under CRE 806.

Accordingly, the division determines that it was error, albeit

harmless, for the trial court to conclude that the defendant’s

statement, if admitted, was subject to impeachment under CRE

806.

The division also rejects the defendant’s contention that

reversal is required because three witnesses improperly bolstered

the credibility of the victim. Finally, the division agrees that the trial court incorrectly entered separate convictions for sexual

assault on a child and sexual assault on a child-pattern of abuse.

Because the division determines that the pattern of abuse count

acts only as a sentence enhancer, one count has to be vacated. COLORADO COURT OF APPEALS 2018COA47

Court of Appeals No. 15CA1175 Mesa County District Court No. 13CR1151 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Roger Lee Short,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE DAILEY Hawthorne, J., concurs Welling, J., specially concurs

Announced April 5, 2018

Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Roger Lee Short, appeals the judgment of

conviction and sentence entered on a jury’s verdicts finding him

guilty of sexual assault on a child and sexual assault on a child-

pattern of abuse. We affirm in part, vacate in part, and remand

with directions.

I. Background

¶2 While driving with her Grandmother L in July 2013, the

victim, an eight-year-old girl, saw Short napping in the park. The

victim began to yell, while ducking down in her booster seat in

order to hide from him. When Grandmother L asked what was

wrong, the victim responded that she hated Short and was going to

stab him someday because he had been “touching” her and

“messing with” her. Upon further questioning, the victim said Short

had been touching her “down there,” pointing to her vaginal area;

had masturbated in front of her while the rest of her family had

gone outside to smoke; and had told her he would kill her if she

ever told anyone. Later, the victim disclosed that Short had also

digitally penetrated her anus and made her dance naked.

¶3 Short had dated the victim’s other grandmother, Grandmother

K, for four years, and they often visited the then four-to-seven-year-

1 old victim at the victim’s home. During this time, Grandmother L

and the victim’s mother were concerned that the victim was being

sexually assaulted because she had vaginal redness and swelling,

experienced behavioral changes, suffered from repeated urinary

tract infections, and had regressed in her toilet training. Several

times, they asked the victim if Short or anybody else was sexually

assaulting her. When Grandmother L asked if “anybody was

touching her . . . she would say no. But, if [Grandmother L] asked

her if [Short] was touching her, she would not answer

[Grandmother L].”

¶4 When questioned by police, Short admitted knowing the

victim’s family and visiting her home. He also stated that he was

aware of the victim’s incontinence issues and that “someone’s

abusing her.”

¶5 The prosecution charged Short with two counts of sexual

assault on a child and two counts of sexual assault-pattern of

abuse. One set of sexual assault and sexual assault–pattern of

abuse charges was based on acts of fondling; the other was based

on acts of digital penetration.

2 ¶6 At trial, the victim testified in some respects inconsistently to

what she had previously told others. Additionally, she could not

remember how Short used to “play with her” and if she saw Short

touch himself. She had difficulty remembering where Short

touched her, although she eventually indicated that he touched her

on “her privates.” Consequently, the prosecution introduced

evidence of the victim’s prior statements and of possible reasons for

discrepancies or inconsistencies between those statements and the

victim’s trial testimony.

¶7 In his defense, Short presented two witnesses: (1) the victim’s

primary care physician, who testified that the victim’s incontinence

issues were attributable to physical abnormalities and not sexual

assault; and (2) a clinical psychologist, who testified that

Grandmother L’s presence during a forensic interview tainted the

victim’s answers. In closing argument, he asserted that the victim’s

allegations had been suggested to her by her mother’s and

Grandmother L’s repeated questions about whether Short had

sexually abused her, and that the family’s repeated questions gave

the victim an outlet to assign blame for her incontinence and issues

at home. This theory was supported, he argued, by the fact that

3 the victim waited four years to report the abuse, despite having

been repeatedly questioned about it beforehand.

¶8 The jury acquitted Short of the sexual abuse counts relating to

the digital penetration allegations. It found him guilty, however, of

sexual assault on a child and sexual assault on a child-pattern of

abuse in connection with the fondling allegations. The trial court

imposed two concurrent sentences on Short; the longer was for nine

years to life imprisonment in the custody of the Department of

Corrections.

II. Bolstering Evidence

¶9 Short contends that the testimony of three witnesses

improperly bolstered the victim’s credibility. We conclude that

reversal is not warranted.

¶ 10 Short focuses on the testimony of the following witnesses:

 a family therapist who, though unfamiliar with the victim

or the facts of this case, answered a series of hypothetical

questions based on the circumstances of the case to

explain how a child like the victim might (1) not be able

to disclose in court things such as anal penetration and

naked dancing after having disclosed them in a clinical

4 environment; (2) have an extreme visceral reaction upon

seeing her abuser for the first time in over a year; and (3)

make inconsistent statements, without that necessarily

being a sign of fabrication on the child’s part;

 a detective who, remembering the therapist’s testimony

about it not being uncommon for a child to fail to

disclose anal penetration, testified that, based on his

training, experience, and observations of interviews, that

was the case; and

 Grandmother L, who, in response to a question about

whether she was concerned that the victim would not be

honest with her, said, “No. She, she normally would not

lie about something like that.”

¶ 11 Significantly, Short did not object to any of this testimony.

Consequently, reversal is not warranted in the absence of plain

error. See Crim. P. 52(b); People v. Sommers, 200 P.3d 1089, 1095

(Colo. App. 2008).

¶ 12 It is improper for a witness to testify to whether another

“witness was telling the truth on a specific occasion because it is

solely the jury’s responsibility to determine whether a particular

5 witness’s testimony or statement is truthful.” People v. Bridges,

2014 COA 65, ¶ 11. “This rule applies to both direct and indirect

implications of a [witness’s] truthfulness.” Venalonzo v. People,

2017 CO 9, ¶ 32.

A. The Therapist

¶ 13 Our case law recognizes that “‘[a]n expert may testify as to the

typical demeanor and behavioral traits displayed by a sexually

abused child,’ . . . because it assists the jury in understanding the

victim’s behavior after the incident — why the victim acted the way

he or she did.” People v. Relaford, 2016 COA 99, ¶ 28 (quoting

People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007)). This type of

expert testimony “aid[s] the jury in understanding the typicality of

reactions by [children] who have been subjected to sexual abuse

that might, under other circumstances, be considered bizarre.”

People v. Morrison, 985 P.2d 1, 6 (Colo. App. 1999), aff’d, 19 P.3d

668 (Colo. 2000); accord People v. Fasy, 829 P.2d 1314, 1317 (Colo.

1992) (The doctor’s “testimony clearly assisted the jury in

understanding the victim’s behavior after the incident.”).

¶ 14 This type of evidence is considered proper because it “(1)

relates to an issue apart from credibility and (2) only incidentally

6 tends to corroborate a witness’s testimony.” Relaford, ¶ 31 (quoting

People v. Cernazanu, 2015 COA 122, ¶ 20). This evidence does not

say whether the child was or was not lying on a specific occasion;

instead, it explains why a jury should not necessarily disbelieve a

child because of circumstances that, in a different context, would

discredit the child’s story. See People v. Whitman, 205 P.3d 371,

383 (Colo. App. 2007). Such information provides “a relevant

insight into the puzzling aspects of the child’s conduct and

demeanor which the jury could not otherwise bring to its

evaluation.” Id. (quoting People v. Aldrich, 849 P.2d 821, 829 (Colo.

App. 1992)); see also State v. Myers, 359 N.W.2d 604, 610 (Minn.

1984) (“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 of her credibility is

helpful and appropriate in cases of sexual abuse of children.”))

(quoted with approval by the supreme court in Fasy, 829 P.2d at

1317).

¶ 15 The present case is, in many respects, like People v. Mintz.

There, as here,

7 the expert . . . answered a number of hypothetical questions reflecting the facts of the present case. The expert testified about traits and behavior generally exhibited by children. He did not testify [the] victim exhibited these traits, and he did not offer an opinion about whether [the] victim told the truth about having been abused.

The purposes for which the expert’s testimony was admitted in the case have previously been deemed proper. . . .

....

This evidence was admissible “because the expert testified in general terms [and] did not focus on the truthfulness of the child’s statements.”

Mintz, 165 P.3d at 831-32 (quoting Morrison, 985 P.2d at 5); see

also Morrison, 985 P.2d at 5 (“The hypothetical question posed to

this witness contained facts substantially identical to those

disclosed by the evidence here, i.e., one of the victims had made

rather bizarre accusations against defendant and had later

withdrawn them. The expert’s opinion that such actions are typical

of the method of empowerment used by young male victims was

admissible under CRE 702 to explain that such accusations and

later denials by such a victim are not necessarily unusual.”).

8 ¶ 16 We reject Short’s assertion that Mintz and Morrison were

wrongly decided. Persuaded by those authorities, we perceive

nothing improper about the therapist’s testimony here.

¶ 17 In reaching this conclusion, we are cognizant of the supreme

court’s recent decision in Venalonzo. In that case, a forensic

interviewer “testified about the two girls’ interviews and compared

their behavior to that of other child sex assault victims.

Specifically, she stated that many of the children’s behaviors were

common to [those of] other child sex assault victims she had

interviewed . . . .” Venalonzo, ¶ 35. The supreme court held that

“the only purpose for the interviewer’s testimony comparing [the two

children’s] behavior to that of other child sex assault victims was to

bolster the children’s credibility. Admitting this evidence did not

make any other fact at issue more or less probable.” Id. at ¶ 36

(citation omitted). Consequently, the court held that the

interviewer’s testimony “improperly bolstered the credibility of the

child victims by creating an impermissible inference that they were

telling the truth in this case.” Id. at ¶ 2.

¶ 18 Venalonzo is distinguishable from the present case. Unlike the

present case, the expert in Venalonzo was intimately involved with

9 the child victims in the case. She was the individual who took their

statements, testified to their behaviors, and compared their

behaviors to those she saw in other child sexual abuse cases. The

interviewer was, therefore, testifying as both a fact witness and an

expert. The jury could not help but interpret what the expert had to

say, in light of her dual role, as intimating her opinion that the

children had been truthful during the interview.

¶ 19 In the present case, the therapist did not play a dual role. She

was not involved in taking — and did not otherwise witness — the

victim’s statements. Her expert opinions could not be interpreted

as conveying an opinion of her belief in the truthfulness of the

victim on another occasion.

¶ 20 Notably, the court in Venalonzo did not repudiate or retreat

from its earlier decision in Fasy — a decision consistent with the

principles and authorities upon which we rely here. Consistent

with Fasy, the therapist’s testimony here permissibly conveyed to

the jury information that would assist it in evaluating what might

appear to be puzzling aspects of the victim’s behavior subsequent to

the commission of the alleged offense. Although that evidence “may

incidentally give rise to an inference that a victim is or is not telling

10 the truth about the specific incident,” “this fact alone is insufficient

to deny admission of the evidence, because expert testimony

generally tends to bolster or attack the credibility of another

witness.” People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986).

B. The Detective

¶ 21 We also perceive nothing improper about the detective’s

testimony. The detective was not testifying to the truthfulness of

the therapist, and thus, inferentially, of the victim too. The

detective was simply relating to the jury his observations about

child victim disclosures; he rendered no opinion about whether a

child’s difficulty in disclosing something made it more or less likely

that he or she was telling the truth.

C. Grandmother L’s Testimony

¶ 22 Based on our reading of other parts of Venalonzo and of

Cernazanu, we conclude that Grandmother L’s testimony that the

victim “normally would not lie about something like that” was

improper.

¶ 23 In Venalonzo, the supreme court held that a mother’s

testimony that her child

11 did not display any signs that she was lying when she reported the incident, that [the child] was not sophisticated enough to make up a story about the sexual assault, and that [the child] had no reason to accuse [the defendant] unless the incident had actually occurred . . . amounted to testimony that [the child] was telling the truth about the sexual assault.

Venalonzo, ¶ 39. Further, the court pointed to the prosecutor’s

statement (“you said that she wouldn’t accuse somebody of this”)

and question (whether the child’s “mind wasn’t sophisticated

enough to come up with this”) as eliciting the mother’s comments

on the child’s veracity in the case. Id. at ¶ 42.

¶ 24 In Cernazanu, a division of this court held that a mother’s

testimony that her child did not display typical “lying” behavior

when reporting a sexual assault necessarily implied to the jury that

the victim was not lying, and thus, that she was telling the truth on

that occasion. 2015 COA 122, ¶¶ 16-22.

¶ 25 Similar to those cases, Grandmother L’s comment that the

victim would normally not lie about something like “that” served no

other purpose than to convey to the jury Grandmother L’s belief

that the victim was not lying — and, consequently, that she was

telling the truth — on this occasion.

12 ¶ 26 In so concluding, we necessarily reject the prosecution’s

argument that Grandmother L’s testimony was evidence of the

victim’s general character for truthfulness, which under CRE 608(a)

was admissible because Short’s defense attacked the victim’s

character for truthfulness. The evidence challenged on appeal was

not evidence of the victim’s general character for truthfulness but

rather “evidence of [the victim’s] specific veracity habit and its

application to a specific occasion.” Cernazanu, ¶ 23.

¶ 27 As noted earlier, because Short did not object to Grandmother

L’s testimony, reversal is not warranted in the absence of plain

error.

¶ 28 Plain error is error that is both “obvious and substantial.”

Hagos v. People, 2012 CO 63, ¶ 14. To qualify as plain error, the

error must be so clear cut that a trial judge should have been able

to avoid it without benefit of objection, People v. Pollard, 2013 COA

31M, ¶ 39, and it must be “seriously prejudicial” — that is, it must

so undermine the fundamental fairness of the trial as to cast

serious doubt on the reliability of the defendant’s conviction. People

v. Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.

13 ¶ 29 “The rule that a witness may not express an opinion as to the

credibility of another witness is both clear and long established.”

People v. Cook, 197 P.3d 269, 275-76 (Colo. App. 2008); see, e.g.,

People in Interest of G.E.S., 2016 COA 183, ¶ 31 n.2 (“[T]his court

and the supreme court have long held that a witness may not vouch

for the credibility of another witness on a particular occasion[.]”).”

Although, in some circumstances, it is not always clear how the

rule applies, Relaford, ¶¶ 44-48 (sorting out permissible from

impermissible expert opinion on child behaviors), it is, in our view,

clear in this case. Thus, the “obvious” prong of the plain error

standard is met.

¶ 30 The issue, then, is whether the error in allowing Grandmother

L’s testimony was so “seriously prejudicial” as to warrant a new

trial. We conclude that it was not.

¶ 31 We note, in this respect, that (1) Grandmother L’s testimony

was very brief; (2) Grandmother L was not an expert, and thus, her

testimony did not have the imprimatur of expertise; (3) the

prosecution presented evidence (i.e., the victim’s vaginal redness

and swelling, behavioral changes, repeated urinary tract infections,

and incontinence; Short’s acknowledgment that somebody had

14 abused the victim; and the victim’s vehement reaction upon seeing

Short for the first time in over a year) corroborating the victim’s

allegations of sexual misconduct; and (4) the prosecution made no

reference to this part of Grandmother L’s testimony in closing

argument.

¶ 32 In light of these circumstances, the error here does not cast

serious doubt on the reliability of Short’s conviction; consequently,

there is no plain error warranting reversal. See People v. Gallegos,

644 P.2d 920, 927 (Colo. 1982) (improperly admitting investigating

officer’s testimony “attesting to the accuracy or credibility of witness

statements” did not constitute plain error where “the jury had an

opportunity to evaluate the extensive testimony of the victim” at

trial); see also People v. Eppens, 979 P.2d 14, 18 (Colo. 1999)

(finding a social worker’s testimony that she “felt that [the victim]

was sincere” did not rise to the level of plain error because the

social worker testified as a lay witness, the jury had “a full

opportunity to judge [the victim’s] credibility in light of her

demeanor,” and the victim’s testimony was corroborated by other

evidence); cf. Bridges, ¶ 21 (finding error was reversible because the

15 witness expressing the opinion was qualified as an expert witness

and there was no other corroboration of the victim’s allegations).

III. Short’s Exculpatory Statement

¶ 33 Short contends that the trial court erroneously compelled him

to forgo admitting an exculpatory part of a statement he gave to the

police by telling him that, if that part of the statement was

admitted, the prosecution would be permitted to expose the jury to

the fact that he had previously been convicted of a felony. Although

we agree, we nonetheless conclude that reversal is not warranted.

A. Facts

¶ 34 At trial, the prosecution presented evidence from Short’s

recorded interview with police. Through the testimony of a

detective, the prosecution introduced a statement made by Short in

which he agreed “someone’s abusing [the victim].” The prosecution

did not, however, propose to admit what Short had said

immediately thereafter: “[B]ut it ain’t me.”1

1In the trial court, defense counsel argued that Short had said, “I did not. I swear to God.” Short did say this, but about sixteen seconds after he said, “[B]ut it ain’t me,” and in response to the detective’s accusation (that no one tried to admit) that the victim said it was Short who “touched” her.

16 ¶ 35 Short asserted that admitting the first part of the statement

without the second was “a complete misrepresentation” of what he

said during the interview, and that he was entitled to have the

second part admitted under the rule of completeness, CRE 106.

¶ 36 The trial court determined that the second part of the

statement could, as Short argued, come in under the rule of

completeness. However, the trial court also determined that

because the second part of the statement was self-serving hearsay,

if it was introduced by the defense, the prosecution would be

entitled to impeach it with evidence of Short’s previous felony

conviction. See CRE 806 (“When a hearsay statement . . . has been

admitted in evidence, the credibility of the declarant may be

attacked, and if attacked may be supported, by any evidence which

would be admissible for those purposes if declarant had testified as

a witness.”); see also § 13-90-101, C.R.S. 2017 (“In every case the

credibility of the witness may be drawn in question, as now

provided by law, but the conviction of any person for any felony

may be shown for the purpose of affecting the credibility of such

witness.”). Because of this ruling, Short did not attempt to admit

the second part of the statement.

17 B. The Trial Court Erred in Ruling that an Exculpatory Part of Short’s Statement Was Admissible Subject to Impeachment Under CRE 806

¶ 37 We review a trial court’s evidentiary ruling for an abuse of

discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). “A trial

court abuses its discretion when its ruling is (1) manifestly

arbitrary, unreasonable, or unfair or (2) based on an erroneous

understanding or application of the law.” People v. Casias, 2012

COA 117, ¶ 17.

¶ 38 Here, we conclude that the trial court misunderstood or

misapplied the rule of completeness. The trial court correctly

recognized that the second part of Short’s statement qualified the

first, and, consequently, the second part could be considered as one

component of a larger, completed statement. But for purposes of

attributing who was the proponent of the evidence (and thus who

carried the evidentiary burdens associated with its admission), the

court divided the completed statement into two parts and held

Short responsible for the evidentiary “costs” of admitting the part

favoring him. This, we believe, was error. The proper course would

have been to inform the prosecution that it had a choice: admit (and

forfeit any objection to any pertinent part of) the completed

18 statement or admit no part of the statement at all. If the

prosecution had chosen to admit the completed statement, it could

not transfer onto Short the costs of admitting that part that was

favorable to him. The admission of the completed statement could

not, then, be made subject to a right in the prosecution to impeach

the part containing Short’s exculpatory statement.

¶ 39 At common law, the rule of completeness permitted the

introduction into evidence of a part of a statement to explain or put

into context another part of the statement that was (or was about to

be put) in evidence; the rule did not, however, extend to portions of

the statement that were irrelevant to the part of the statement that

was (or was about to be put) in evidence. See People v. DelGuidice,

199 Colo. 41, 47, 606 P.2d 840, 844-85 (1979) (relying on Camps v.

N.Y.C. Transit Auth., 261 F.2d 320, 322 (2d Cir. 1958)); see also

United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (“[I]t

is consistently held that the rule [of completeness] permits

introduction only of additional material that is relevant and is

necessary to qualify, explain, or place into context the portion

already introduced.” (quoting United States v. Simms, 385 F.3d

1347, 1359 (11th Cir. 2004))); Diggs v. United States, 28 A.3d 585,

19 597 (D.C. 2011) (“The rule of completeness does not provide that

when part of an out-of-court statement is introduced against its

maker, the declarant has an automatic right to insist that other

parts be admitted too, simply because they are favorable to his

position. Rather, the rule contemplates that other parts of the

statement should be admitted, in the trial court’s discretion, ‘when

this is necessary to explain the admitted portion, to place it in

context, or to avoid misleading the trier of fact.’” (quoting Butler v.

United States, 614 A.2d 875, 882 (D.C. 1992))).

¶ 40 According to the supreme court, “[t]he common-law rule of

completeness is codified in CRE 106.” People v. Melillo, 25 P.3d

769, 775 n.4 (Colo. 2001). CRE 106 provides that “[w]hen a writing

or recorded statement or part thereof is introduced by a party, an

adverse party may require him at that time to introduce any other

part or any other writing or recorded statement which ought in

fairness to be considered contemporaneously with it.”

¶ 41 Because CRE 106 is identical to Fed. R. Evid. 106, we consider

federal cases and authorities concerning the federal rule highly

persuasive in interpreting and applying our own. See, e.g., Faris v.

Rothenberg, 648 P.2d 1089, 1091 n.1 (Colo. 1982) (“Fed. R. Civ. P.

20 63 is identical to C.R.C.P. 63. Thus, federal cases and authorities

interpreting the federal rule are highly persuasive.”); United Bank of

Denver Nat’l Ass’n v. Shavlik, 189 Colo. 280, 282, 541 P.2d 317,

318 (1975) (deeming the authority and commentators on Fed. R.

Civ. P. 14 to be persuasive because C.R.C.P. 14 is virtually

identical).

¶ 42 One commentator has aptly summarized Fed. R. Evid. 106

thusly:

Basically, the rule prevents a party from achieving an unfair result by introducing all or part of a writing or recording out of its context. When the trial court finds that fairness requires the admission of additional evidence, the proponent must decide between allowing all of the evidence to be admitted and withdrawing the originally proffered portions.

The party who wants to complete the record is entitled under the Rule to compel the offer of the additional information at the time the proponent offers the partial evidence, rather than waiting until a later stage of the trial. . . . As such, the rule reduces the risk that a writing or recording will be taken out of context and that this initial misleading impression will take hold in the mind of the jury. The opponent has discretion, of course, to wait to offer the completing evidence until a later point. But the rule recognizes that

21 sometimes waiting until later to put an unfair presentation of harmful evidence in context is just not good enough.

2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual

§ 106.02 (11th ed. 2015) (footnotes omitted); see also 1 Kenneth S.

Broun, McCormick on Evidence § 56 (7th ed. 2013) (recognizing that

Fed. R. Evid. 106 permits “the adversary . . . to require the

proponent to introduce both the part which the proponent desires

to introduce and other passages which are an essential part of its

context”); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 1:42 (4th ed. 2015) (“[S]ometimes the party who offers a

written or recorded statement (or part of one) may himself be

required in appropriate cases to present additional parts, rather

than leaving the task of providing necessary context to other

parties. In both cases, the aim is to prevent distortion and

consequent misleading.”).

¶ 43 What happens, though, when otherwise inadmissible evidence

is proffered as the means of satisfying the rule of completeness

embodied in Fed. R. Evid. 106? Some courts, including divisions of

this court, have held that the rule of completeness does not

authorize the admission of otherwise inadmissible evidence. See

22 People v. Davis, 218 P.3d 718, 731 (Colo. App. 2008) (“Under the

rule of completeness, when one party introduces part of a written or

recorded statement, the opposing party can introduce other parts of

that statement. . . . However, self-serving hearsay declarations

made by a defendant may be excluded because there is nothing to

guarantee their trustworthiness.”); accord People v. Zubiate, 2013

COA 69, ¶ 33 (stating, in dicta, “[s]elf-serving hearsay declarations

made by a defendant may be excluded under the rule of

completeness because there is nothing to guarantee their

trustworthiness”), aff’d, 2017 CO 17; see also United States v. Ford,

761 F.3d 641, 652 (6th Cir. 2014) (“[E]xculpatory hearsay may not

come in solely on the basis of [the rule of] completeness.” (quoting

United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013))); United

States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“Even if the rule

of completeness did apply, exclusion of [the defendant’s]

exculpatory statements was proper because these statements would

still have constituted inadmissible hearsay.”), holding modified on

other grounds by United States v. Larson, 495 F.3d 1094 (9th Cir.

2007); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996)

23 (Rule 106 does not “render admissible the evidence which is

otherwise inadmissible under the hearsay rules.”).

¶ 44 But that position is not the uniform view. See, e.g., United

States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010) (A

hearsay objection “does not block [information’s] use when it is

needed to provide context for a statement already admitted.”);

United States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008) (“[O]ur

case law unambiguously establishes that the rule of completeness

may be invoked to facilitate the introduction of otherwise

inadmissible evidence.”); United States v. Sutton, 801 F.2d 1346,

1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function

only by permitting the admission of some otherwise inadmissible

evidence when the court finds in fairness that the proffered

evidence should be considered contemporaneously. A contrary

construction raises the specter of distorted and misleading trials,

and creates difficulties for both litigants and the trial court.”);

United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) (Under

Rule 106, otherwise inadmissible evidence is admissible where it “is

necessary to correct a misleading impression.”); State v. Sanchez,

380 P.3d 375, 383, 383 n.4 (Utah Ct. App. 2016) (noting the split

24 among federal and state courts over whether Rule 106 admits

otherwise inadmissible hearsay, and deciding that it does allow the

admission of such evidence), cert. granted, 390 P.3d 727 (Utah

2017).

¶ 45 Nor, according to a number of commentators, is the failure to

admit otherwise inadmissible evidence pursuant to the rule of

completeness the better view. For example, one commentator said:

A party should not be able to admit an incomplete statement that gives an unfair impression, and then object on hearsay grounds to completing statements that would rectify the unfairness.

The appropriate way to resolve the hearsay issue is to hold that the party who offers an incomplete statement or document forfeits any hearsay objection to completing evidence that is necessary to correct a misleading impression. . . . [B]y introducing evidence in an unfair and selective way, the proponent can be deemed to waive its right to object to hearsay that would be necessary to place that evidence in proper context. It is up to the proponent of the initial portion to decide whether to forgo that portion, or to forgo the hearsay objection to the remainder. Another way to look at it is that when the proponent offers evidence out of its necessary context, any out-of-court statement that is clearly necessary to place the evidence in proper context is not hearsay at all; rather it is

25 admissible for the not-for-truth purpose of providing context.

2 Saltzburg et al., § 106.02 (footnotes omitted); see also 1 Mueller &

Kirkpatrick, § 1:43 (“[H]earsay objections should not block use of a

related statement . . . when it is needed to provide context for

statements already admitted. Thus a statement should be

admissible if needed to provide context under Rule 106 and to

prevent misleading use of related statements even if the statement

would otherwise be excludable as hearsay . . . . ”); id. § 1:45 (“On

request by the accused, the court should require a prosecutor who

wants to offer parts of a confession to introduce at the same time

not only the incriminating parts but also self-serving or exculpatory

parts that should in fairness be heard and considered at the same

time. If for any reason the prosecutor introduces less than all of it,

in the process deleting self-serving or exculpatory remarks that the

accused wishes to have heard by the trier of fact, the rule of

completeness requires the court to receive the latter.”); Dale A.

Nance, Verbal Completeness and Exclusionary Rules Under the

Federal Rules of Evidence, 75 Tex. L. Rev. 51, 54 (1996) (“If a

proponent has evidence of the opponent’s admission, the proponent

26 may well be tempted to introduce the part of that admission that is

most damaging to the opponent, secure in the knowledge that the

opponent cannot respond. The completeness doctrine vitiates this

maneuver by assuring the introduction of all parts of the admission

that are demanded by the opponent and that affect the inferences

that may legitimately be drawn from the part of the utterance the

proponent has chosen to introduce. Thus, the completeness

doctrine serves a trumping function in that it trumps exclusionary

rules that would otherwise prevent the opponent’s response.”).

¶ 46 Persuaded by this latter group of authorities, we conclude that

the trial court properly determined that Short’s otherwise

inadmissible self-serving hearsay was admissible under the rule of

completeness to qualify, explain, or place into context the evidence

proffered by the prosecution. See Nance, 75 Tex. L. Rev. at 83

(“Neither fairness in administration nor the ascertainment of truth

is served by an interpretation of Rule 106 that would allow a

proponent to take matters out of context by choosing to omit

27 information in the knowledge that the opponent is prevented by an

exclusionary rule from presenting that which is omitted.”).2

¶ 47 The remaining question, though, is whether the court could

exact a “price” from Short under the rule of completeness for

admitting the exculpatory portions of his statement. In United

States v. Velasco, 953 F.2d 1467, 1473 n.5 (7th Cir. 1992), the

Seventh Circuit Court of Appeals appeared to answer “yes,” or at

least “yes” in a case where the defendant was trying, without having

to take the stand himself, to “get[] the benefit of the statement that

[he] ha[d] recanted.” Characterizing the defendant’s position there

as “want[ing] to have his cake, eat it too, and not have to clean up

the dishes afterwards,” the court said that Rule 806 was “not

inapplicable.” Id.

¶ 48 One commentator has, however, espoused a contrary view:

If one views Rule 106 as creating a distinct hearsay exception which the opponent is now using to present his self-serving hearsay, then Rule 806 allows the proponent to impeach. If,

2 Necessarily, then, we decline to follow the Davis division’s holding to the contrary. See People v. Smoots, 2013 COA 152, ¶ 20 (stating that one division of the court of appeals is “not obligated to follow the precedent established by another division”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.

28 however, one views Rule 106 as controlling the proponent’s use of party-opponent admissions, admissible under Rules 801(d)(2)(A) and 801(d)(2)(B), then Rule 806 implicitly precludes impeachment, because such admissions are defined as nonhearsay in the Federal Rules. The latter must be the right result because the exercise of the completeness motion should not subject the opponent to any impeachment that would not have been allowed if the proponent had presented the entirety of the statement in the first place, as it was his duty to do. The forced presentation theory of completeness answers the question of how to treat the resulting admission of the remainder.

Nance, 75 Tex. L. Rev. at 94-95 (footnotes omitted); id. at 96

(critiquing Velasco, saying its “dictum mistakes the nature of the

completeness doctrine, as well as the import of Rule 806: The

defendant should have been no more subject to impeachment than

he would have been had the government presented the relevant

whole of the post-arrest statement”); cf. 1 Mueller & Kirkpatrick,

§ 1:45 (requiring the prosecution to offer additional parts of a

statement at the outset “keeps the government from putting what

amounts to unfair pressure on the accused to take the witness

stand”).

¶ 49 In our opinion, this latter view is more in line with the

purposes of the rule of completeness codified in Rule 106, and,

29 accordingly, we adopt it. If the prosecution wants to admit part of a

statement, it ought, in fairness, to “pay the costs” of admitting it in

its (relevant) entirety under the rule of completeness. If it is not

willing to pay the costs, it should not be permitted to admit any

portion of the statement.

¶ 50 So far, we have been talking about Rule 106 and its

application without addressing the form of the statement at issue.

But by its terms, Rule 106 applies only to “writings or recorded

statements.” Short’s statement was not admitted in this form. It

was admitted through the oral testimony of a detective.

Nonetheless, following the lead of federal case law on the subject,

we conclude that Rule 106 principles also apply to the form of

evidence proffered by the prosecution here under CRE 611(a) —

which is substantively identical to Fed. R. Evid. 611(a).3 See, e.g.,

3 CRE 611(a) provides as follows:

(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

30 Lopez-Medina, 596 F.3d at 734 (“While Rule 106 applies only to

writings and recorded statements, we have held ‘the rule of

completeness embodied in Rule 106 is “substantially applicable to

oral testimony,” as well by virtue of Fed. R. Evid. 611(a) . . . .’”

(quoting United States v. Zamudio, 141 F.3d 1186, 1998 WL

166600, at *5 (10th Cir. Apr. 6, 1998) (unpublished table

decision))); United States v. Holden, 557 F.3d 698, 705 (6th Cir.

2009) (holding that the Rule 106 principle of completeness “has

since been extended to oral statements through interpretation of

Fed. R. Evid. 611(a),” and the two are now “equivalent”); United

States v. Range, 94 F.3d 614, 621 (11th Cir. 1996) (Rule 611 “has

been read to impose the same fairness standard [as under Rule

106] upon conversations.”); cf. State v. Cabrera-Pena, 605 S.E.2d

522, 525-26 (S.C. 2004) (finding that the common law of the state

extends the rule of completeness in Rule 106 to oral

communications).

¶ 51 The upshot of all this is that the trial court erroneously held

that the exculpatory parts of Short’s statement could be admitted,

subject to impeachment of Short (as the declarant) with his prior

conviction, under CRE 806. In light of the court’s erroneous ruling,

31 Short did not seek to have the exculpatory parts of his statement

admitted, and, consequently, the only evidence the jury heard, with

respect to his statement, was that he admitted “someone [was]

abusing” the victim.

C. The Error Was Harmless

¶ 52 Under Crim. P. 52(a), we are to disregard a harmless error.

But whether we can disregard a particular error as harmless

depends, in part, on (1) whether the error is classified as

constitutional or nonconstitutional in dimension and (2) whether

the error satisfies the appropriate harmless error test for

constitutional or nonconstitutional error. See Krutsinger v. People,

219 P.3d 1054, 1058 (Colo. 2009) (discussing the harmless error

tests for constitutional and nonconstitutional error).

¶ 53 For two reasons, we do not apply the harmless error test for

constitutional error:

 (1) In Krutsinger, the supreme court recognized that not

“every erroneous evidentiary ruling . . . amounts to

federal constitutional error.” Id. at 1062. “[T]he

standard or test for assessing whether a defendant’s right

to . . . present a defense has been violated by evidentiary

32 rulings is clearly dependent upon the extent to which he

was permitted to subject the prosecutor’s case to

‘meaningful adversarial testing.’” Id. (quoting Crane v.

Kentucky, 476 U.S. 683, 691 (1986)). In the present

case, Short was permitted to subject the prosecution’s

case to “meaningful adversarial testing.” Consequently,

the trial court’s error was not of constitutional

dimension; and

 (2) Short did not assert in the trial court that the court’s

rule of completeness ruling chilled his rights to present a

defense and to a fair trial. Consequently, these

constitutional issues have not been preserved for

appellate review. See People v. Gash, 165 P.3d 779, 781

(Colo. App. 2006) (holding evidentiary objection in the

trial court based on hearsay but not confrontation

grounds did not preserve alleged confrontation error for

review).

¶ 54 For these reasons, we apply the harmless error test for

nonconstitutional error. See, e.g., State v. Chavez, 189 Wash. App.

1047, 2015 WL 5099540, *7 (Aug. 31, 2015) (unpublished opinion)

33 (stating that error in precluding defendant from asking witness

about other parts of statement was not an error of constitutional

magnitude).4 Under the nonconstitutional harmless error test, the

defendant bears the burden of showing prejudice from the error.

Casias, ¶ 60. To obtain reversal, the defendant must establish a

reasonable probability that the court’s error contributed to his

conviction. See id. at ¶ 62. A “reasonable probability” does not

mean that it is “more likely than not” that the error caused the

defendant’s conviction; rather, it means only a probability sufficient

to undermine confidence in the outcome of the case. Id. at ¶ 63.

¶ 55 In assessing the prejudicial effect of evidentiary error,

an appellate court considers a number of factors, namely, “the overall strength of the state’s case, the impact of the improperly admitted or excluded evidence on the trier of fact, whether the proffered evidence was cumulative, and the presence of other evidence corroborating or contradicting the point for which the evidence was offered.”

4 Ordinarily, unpreserved constitutional error would warrant relief only if the error qualified as plain error, i.e., error that is “obvious” and “so undermine[s] the basic fairness of the trial as to cast serious doubt on the reliability of the judgment.” People v. Gash, 165 P.3d 779, 781-82 (Colo. App. 2006). The type of prejudice a defendant must show to demonstrate plain error is more onerous than that which he or she must demonstrate to show reversible nonconstitutional error. See Hagos v. People, 2012 CO 63.

34 Id. at ¶ 64 (quoting State v. Martin V., 926 A.2d 49, 54 (Conn. App.

Ct. 2007)). “‘[T]he single most important factor’ in a

nonconstitutional harmless error inquiry is whether the case was

‘close.’” Id. at ¶ 69 (quoting United States v. Ince, 21 F.3d 576, 584

(4th Cir. 1994)).

¶ 56 Initially, we note that we are usually confronted with

evidentiary error involving either the improper admission of

something into evidence or the improper exclusion of something

from the evidence. In the present case we are confronted with both.

Short’s statement that “someone’s abusing” the victim was

inadmissible absent compliance with the rule of completeness.

Conversely, Short was improperly inhibited from introducing

contextual evidence of a denial of wrongdoing on his part.

¶ 57 Short’s statement that “someone’s abusing her” was

essentially cumulative of other evidence indicating that the victim

had been abused. Besides the victim’s testimony that Short had

“touch[ed]” her “privates,” the victim had vaginal redness and

swelling, suffered urinary tract infections, and exhibited behavioral

35 changes, including regression in her toilet training,5 “dancing

provocatively,” making excuses to stay longer at Grandmother L’s

house, and crying when she had to return to Grandmother K’s

home where Short sometimes stayed. Defense counsel’s expert

testified that the victim’s urinary tract infections could be attributed

to sexual assault, and the victim’s significant behavioral changes

tended to corroborate the fact of a sexual assault. See Stevens v.

People, 796 P.2d 946, 956 (Colo. 1990) (recognizing that behavioral

changes such as a child’s loss of toilet training, sexual knowledge

that is new or atypical for the child, and inappropriate sexual

behavior are corroborative of sexual assault allegations).

¶ 58 The bigger problem, as we see it, was the exclusion of Short’s

denial of wrongdoing. Although this evidence would not have been

admissible otherwise,6 its absence here allowed the prosecution to

5 Grandmother L testified that “[the victim] would wet her pants a lot” and that she began “pooping” in her pants.

6 See, e.g., People v. Abeyta, 728 P.2d 327, 331 (Colo. App. 1986) (“Hearsay declarations made by a defendant in his own favor are generally not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its testimonial truthworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse; an accused could create evidence

36 present a misleading picture (i.e., of someone who had admitted

knowing the victim had been abused but, apparently, had not

denied doing it himself).

¶ 59 In other circumstances, such a situation could warrant

reversal for a new trial. But not, we think, here. In the end, the

case against Short was strong, even aside from the misleading

statement that was entered into evidence. Short was shown to have

had access to the victim, and on occasion was alone with the victim,

around the time the victim’s relatives first began to suspect she was

being abused. The victim reacted violently upon seeing Short

unexpectedly for the first time in over a year, and she identified

Short as her abuser both in out-of-court statements and in her in-

court testimony. Because this was not a close case, the court’s

evidentiary error was not such as would undermine our confidence

in the verdict. Consequently, the error was harmless.

for himself by making exculpatory statements for subsequent use at his trial.”).

37 IV. One Conviction and Sentence, Not Two

¶ 60 Short contends, the People concede, and we agree, that only

one judgment of conviction and sentence should have been imposed

in this case.

¶ 61 The trial court entered separate convictions and sentences for

both (1) sexual assault on a child and (2) sexual assault on a child-

pattern of abuse. The court sentenced Short to six years to life

imprisonment on the first count, and to nine years to life

imprisonment on the second count.

¶ 62 The number of convictions and sentences that could be

entered turns on whether the pattern of abuse count operated only

as a sentence enhancer or encompassed an additional substantive

offense as well. People v. Wiseman, 2017 COA 49M, ¶ 10. If the

former was the case, then only one conviction with an enhanced

sentence could be entered; if the latter was the case, then two

convictions and sentences could be entered. Id. at ¶ 11.

¶ 63 Here, the jury entered only one guilty verdict, finding Short

guilty of sexual assault–pattern of abuse. As the People concede,

the single verdict form does not support convictions for two

separate offenses for sexual assault and sexual assault-pattern of

38 abuse. Consequently, the pattern of abuse finding could act only as

a sentence enhancer. The separate conviction and sentence for

simple sexual assault must be vacated.

V. Conclusion

¶ 64 The judgment of conviction is affirmed in part and vacated in

part, and the case is remanded with directions to correct the

mittimus consistent with the views expressed in this opinion.

JUDGE HAWTHORNE concurs.

JUDGE WELLING specially concurs.

39 JUDGE WELLING, specially concurring.

¶ 65 I agree with the majority’s analysis and conclusions in Parts

II.B and II.C, as well as Parts III and IV. I also agree with the

majority’s ultimate disposition of the case. Where I respectfully part

ways with the majority, however, is its conclusion that admission of

certain portions of Chery Young’s testimony was not error. Because

I conclude that portions of Ms. Young’s testimony crossed the line

of permissible testimony, I write separately.

¶ 66 Ms. Young was called by the prosecution and, without

objection, testified as an expert in

 all aspects of child sexual assault and abuse and

interactions and reactions of child victims during the

sexual assault;

 the patterns of disclosure and outcry statements of child

sexual assault and abuse victims;

 the forensic protocol of child sexual abuse interviews;

 the victim-offender relationship dynamics; and

 the “process of memory.”

40 ¶ 67 Ms. Young never treated, interviewed, or met A.P., the named

victim in the case. Instead, she testified as a so-called blind expert.

In this capacity she testified regarding the dynamics of sexual

assault disclosures by children generally, including how the nature,

timing, and details of such disclosures vary depending on a variety

of circumstances, such as the age of the child, the relationship with

the alleged perpetrator, and the stability of the child’s environment.

During her direct examination, Ms. Young answered questions

regarding the relationship between a child’s inconsistent

disclosures and his or her truthfulness and credibility. She also

responded to a pair of hypotheticals that closely tracked the facts of

this case. Short never objected during Ms. Young’s testimony.

II. Analysis

¶ 68 On appeal, Roger Lee Short contends that the trial court

committed plain error by permitting Ms. Young to bolster the

victim’s credibility and to explain away inconsistencies in her

disclosures.

¶ 69 Divisions of this court have repeatedly permitted the use of

blind experts in the context of prosecutions for sexual assaults on

children. See, e.g., People v. Relaford, 2016 COA 99, ¶¶ 16, 33;

41 People v. Whitman, 205 P.3d 371, 382-83 (Colo. App. 2007); People

v. Mintz, 165 P.3d 829, 831-32 (Colo. App. 2007); People v.

Morrison, 985 P.2d 1, 5-6 (Colo. App. 1999), aff’d, 19 P.3d 668

(Colo. 2000). The rationale is that “[a]n expert may testify as to the

typical demeanor and behavioral traits displayed by a sexually

abused child.” Mintz, 165 P.3d at 831; see also Whitman, 205 P.3d

at 383 (“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 of her credibility is

helpful and appropriate in cases of sexual abuse of children, and

particularly of [young] children.” (quoting People v. Aldrich, 849 P.2d

821, 829 (Colo. App. 1992))). But even these 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.”

People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009). Nor may any

witness testify that another witness told the truth on a particular

occasion. CRE 608(a)(1); see also Wittrein, 221 P.3d at 1081 (“In

Colorado, neither lay nor expert witnesses may give opinion

testimony that another witness was telling the truth on a specific

occasion.”); People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999)

42 (collecting cases in support of the proposition that “[i]t is well

established that CRE 608(a)(1) does not permit a witness to offer an

opinion that a child was telling the truth on the specific occasion

that the child reported a particular sexual assault by a defendant”).

With these concepts in mind, I turn to two lines of inquiry of Ms.

Young that I find problematic.

A. Opinions on A.P.’s Credibility

¶ 70 Ms. Young was the sixth witness to testify at trial. By the time

she testified, the jury was aware that A.P. had given inconsistent

disclosures about what happened to her.

¶ 71 “[W]itnesses are prohibited from testifying that another

witness is telling the truth on a particular occasion.” Venalonzo v.

People, 2017 CO 9, ¶ 32 (citing Wittrein, 221 P.3d at 1081). “This

rule applies to both direct and indirect implications of a child’s

truthfulness.” Id. (citing Wittrein, 221 P.3d at 1082). The line

between permissible and impermissible testimony, however, is not

always clear. See Relaford, ¶ 40 (“[U]nder the existing case law, it is

not always clear (or even consistent among cases) where to draw the

line between expert testimony on the typical characteristics of

sexual assault victims that is permissible and that which is

43 impermissible because it is tantamount to an opinion that the

victim was telling the truth.”).

¶ 72 In my view, three of the questions posed to Ms. Young crossed

this line, as opaque as it may be. Those questions were:

Q. Are there portions in a child’s memory where you, frankly, expect there to be some inconsistencies?

Q. Ms. Young, is then inconsistency always going to be a sign of some fabrication, of some degree of untruthfulness on the part of the child?

Q. Conversely, would you describe that consistency between disclosures is always a sign of credibility?

¶ 73 These questions had only one discernable purpose: to elicit an

opinion about the child victim’s credibility. They were calculated to

elicit an opinion that notwithstanding inconsistencies, A.P.’s

disclosures were credible. That is not the proper subject for expert

testimony. See CRE 608(a)(1); see also Venalonzo, ¶ 32 (holding

that CRE 608(a) “applies to both direct and indirect implications of

a child’s truthfulness”).

44 ¶ 74 Venalonzo is instructive on this point. In Venalonzo, ¶ 7, the

forensic interviewer testified about, among other things, “whether

children typically say different things to the interviewer than they

do to responding officers or Department of Human Services

workers, or when testifying at trial.” The supreme court observed

that “[o]nce the interviewer began comparing [the victims in the

case] to other child sex assault victims — stating that children who

had been sexually assaulted commonly gave conflicting details —

her testimony had no proper purpose.” Id. at ¶ 36 (emphasis

added). Here, the questions were even more problematic, as the

prosecution’s questions invited the expert to draw a direct line

between the inconsistencies in a child’s disclosures and the child’s

credibility. This, in my view, is not a proper line of inquiry.

Accordingly, I conclude that it was error for the trial court to permit

these questions to be asked.

¶ 75 Short did not object to these questions, so we review for plain

error. See Relaford, ¶ 36. Even assuming the error was obvious, in

order to warrant reversal under a plain error standard, the error

must have “so undermined the fundamental fairness of the trial

itself so as to cast serious doubt on the reliability of the judgment of

45 conviction.” Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v.

Miller, 113 P.3d 743, 750 (Colo. 2005)). I conclude that this

testimony does not meet this exacting standard.

¶ 76 Although invited to offer a definitive opinion on the victim’s

credibility by the prosecutor’s improper questions, Ms. Young did

not do so. Instead, each time she was asked about the relationship

between inconsistency, on the one hand, and credibility or

untruthfulness, on the other hand, she opined that inconsistency is

simply a factor that the jury should consider in assessing

credibility, not that it should be disregarded or that it doesn’t

matter. For example, in response to the first question, Ms. Young

responded:

Yes. I mean, and keep this in mind that inconsistent statements don’t, necessarily, don’t equal actually, fabrication. That inconsistent statements can occur for a variety of reasons. And the, the researchers that have done quite a bit on suggestibility and inconsistency, out of Cornell University, have been very clear about that. That, of course, we want to notice inconsistent statements. And we want to understand the reason for them. But, it would be a disservice to decide if a child makes an inconsistent statement, that the child is, therefore, not truthful.

(Emphasis added.)

46 ¶ 77 She offered a similar explanation when asked whether

“inconsistency [is] always going to be a sign of some fabrication”:

Well -- no. It’s important to watch for [inconsistency]. It’s important to understand the dynamics behind it. But, then, it’s a disservice to say if a child is inconsistent. I think it’s important to explore why. And that somebody is able to talk about how come when you talked with this person and then when you talk with me, it seems like you’re talking about things that maybe only the [t]herapist, that only I know about so far. Exploring that and asking the child to explain how come they haven’t been able to talk about that with other people is important to know why. That, you know, I don’t want to say they’re unimportant at all. They’re just important to investigate.

¶ 78 She continued in a similar vein when asked whether

consistency is “always a sign of credibility”:

No. There are a few cases where it’s, usually, high-conflict alienation. The child making an allegation against a parent being coached by another parent. Those children can make these allegations that are very []rote, very rehearsed. There’s a whole lot of other factors. But, they can be very consistent, said exactly the same way, answered the questions the same way. That, also, can create a little bit of a flag just as inconsistent statements can create a yellow flag. That things are []rote and rehearsed make us be a little bit concerned about possible coaching at times. So, we want

47 to understand can the child discuss something like they’re pulling it from actual memory. So, it, what we call it is free-narrative. The ability to talk about something while you’re thinking about it as if you’re kind of describing it as it’s happening. That free-narrative is what most Forensic Interviewers are trying to get a child to do. Because that means they’re retrieving their memory.

And, and, and it, and you have to be careful with these very narrow, rigid, []rote, rehearsed allegation[s]. Particularly, if it’s happening in high conflict of a divorce.

¶ 79 Ms. Young’s responses were similar to those given in Wittrein,

where our supreme court concluded that the error did not

necessitate reversal under a plain error standard. There, the expert

testified on cross-examination that she did not know with “one

hundred percent certainty” that the victim was telling the truth.

Wittrein, 221 P.3d at 1082. The supreme court concluded, based

upon this, “the jury could not interpret her testimony as an opinion

that [the victim] was telling the truth, and her response did not

affect the fairness of the trial,” and, therefore, there was no plain

error. Id.

¶ 80 Here, Ms. Young never told the jurors that they should

disregard inconsistency in assessing credibility. Instead, she told

48 them that inconsistency is one factor among many that they should

consider. In this regard, her testimony wasn’t all that different from

the stock jury instruction on credibility. See COLJI-Crim. E:05

(2017) (“Consider how the testimony of the witness is supported or

contradicted by other evidence in the case. You should consider all

facts and circumstances shown by the evidence when you evaluate

each witness’s testimony.”).

¶ 81 In short, although I conclude that the trial court erred in

permitting the three questions discussed above to be posed to Ms.

Young, based upon the answers she gave, I also conclude that the

admission of her testimony did not so undermine the fundamental

fairness of the trial itself so as to cast serious doubt on the

reliability of the judgment of conviction. Accordingly, I agree with

the majority that reversal is not warranted.

B. Misuse of Hypotheticals

¶ 82 Following A.P.’s initial outcry, she began to see a therapist.

A.P.’s grandmother was present for a portion of some of those

therapy sessions. A.P.’s grandmother testified that during one of

the therapy sessions she was present for, A.P. told her and the

therapist that Short had anally penetrated her with his finger and

49 that he made her dance naked for him. But at trial, A.P. testified

that Short had only touched her outside of her clothing and never

mentioned the allegation of naked dancing. By the time Ms. Young

took the stand, the jury had heard both the grandmother’s

testimony about what A.P. had told her at the therapist’s office and

A.P.’s testimony denying that Short had touched her inside of her

clothing and omitting any reference to naked dancing.

¶ 83 The prosecutor posed two carefully tailored hypotheticals to

Ms. Young:

[Prosecutor:] Let’s use an example. Say a child in a clinical environment, meeting with a [t]herapist that they now have a relationship with, is able to disclose anal penetration; but not able to do so in a courtroom. Would that be surprising to you?

[Ms. Young:] No. Actually, that’s, those are the cases, the couple of cases that I’ve had where kids couldn’t testify to that. I think that is a very, very difficult one for children to disclose and to testify to. The other ones that are difficult for children to disclose and testify to are the things that they did. So, if they were involved in a sexually abusive situation where they performed some sort of sexual act, those are much more difficult for them to talk about than the sexual acts that were perpetrated onto them. And [indiscernible] rectal or anal penetration is a very difficult one for kids to disclose and, and to testify to.

50 [Prosecutor:] What about a disclosure about naked dancing? Would that be the kind of disclosure where the child’s involved in the sexual act, but may have a difficult time voicing that in the courtroom, although, not in the clinical environment?

[Ms. Young:] That would be one of those, because the behavior is theirs as compared to the [o]ffender behaving towards them. That would be a behavior like if you’re talking about a sexual dance or dancing without clothes on or something like that. Then, that goes back to that greater shame and difficulty in things that they have, actually, done. It’s harder to discuss.

¶ 84 Short contends that the testimony elicited in response to these

carefully tailored hypotheticals constituted improper opinion

testimony that A.P. was telling the truth on a particular occasion.

Like the questions discussed in the previous section, Short did not

object to these questions either, so again we review for plain error.

The majority, persuaded by a pair of cases from our court,

concludes that there was nothing improper about these

hypotheticals. While I am not necessarily persuaded that those

cases were correctly decided, I would still conclude — based on the

same cases relied on by the majority — that if admission of this

testimony was error, it was not obvious.

51 ¶ 85 The two carefully tailored hypotheticals afforded Ms. Young

the opportunity to explain away a critical inconsistency between

A.P.’s outcry and her trial testimony. It is one thing for a blind

expert to explain generally how different settings can affect some

children’s comfort level and, in turn, their ability or willingness to

provide details of abuse. But it is quite another to tailor

hypotheticals to the facts of the particular case, and then ask the

expert whether under those particular circumstances it would

“surprise” her that a child would be unable to testify to those

particular details at trial even though she was able to discuss them

previously.

¶ 86 It would have been clearly improper for the prosecutor to ask

A.P.’s therapist whether she would have been “surprised” if A.P. was

not able to testify at trial to the abuse that she had disclosed to her

in therapy. See Venalonzo, ¶¶ 35-37. Such testimony, in my view,

would have been tantamount to vouching for the reliability of the

child’s out-of-court report over the child’s trial testimony. Thus, I

cannot see how it would be permissible. Cf. Eppens, 979 P.2d at 18

(holding that it was error to permit the social worker who

interviewed the child to testify that she felt that the child’s report

52 was “sincere”); Tevlin v. People, 715 P.2d 338, 341 (Colo. 1986)

(holding that social worker’s testimony that he believed the child

victim was telling the truth was improper because it failed to refer

to the witness’ general character for truthfulness and instead went

to the witness’ truthfulness on a specific occasion). In my view,

laundering such an inquiry through a blind expert should not

render it permissible.

¶ 87 Relying on Mintz and Morrison, the majority concludes that

there was nothing improper about these hypotheticals. Supra

¶¶ 15-16. As the majority correctly notes, both of these opinions

seem to authorize — or at least vest the trial court with broad

discretion to permit — the use of closely tailored hypotheticals. See

Morrison, 985 P.2d at 5 (approving a hypothetical question that

“contained facts substantially identical to those disclosed by the

evidence” on the basis that “[t]he expert’s opinion that such actions

are typical of the method of empowerment used by young male

victims was admissible under CRE 702 to explain that such

accusations and later denials by such a victim are not necessarily

unusual”); Mintz, 165 P.3d at 831 (“When testifying as to the typical

behavioral traits of an abused child, the expert may respond to

53 hypothetical questions involving the facts of the case at hand.”).

For the reasons discussed in the paragraph above, I am not

completely persuaded that the lines drawn in Mintz and Morrison

are the right ones.

¶ 88 But mere disagreement with Mintz and Morrison does not

necessarily support a conclusion that the trial court committed

plain error. “To qualify as ‘plain’ error, an error must be so clear-

cut, so obvious, that a trial judge should be able to avoid it without

benefit of objection.” People v. Pollard, 2013 COA 31M, ¶ 39 (citing

People v. Beilke, 232 P.3d 146, 152 (Colo. App. 2009)). “For an

error to be obvious, ‘the action challenged on appeal must

contravene (1) a clear statutory command; (2) a well-settled legal

principle; or (3) Colorado case law.’” People v. Stroud, 2014 COA 58,

¶ 33 (quoting Pollard, ¶ 40).

¶ 89 “[W]here there is no case law or statute concerning a trial

court’s alleged error, we cannot conclude that the trial court’s

decision constituted plain error because the error would not have

been obvious.” Id. Here, not only was there no settled authority

indicating that such hypotheticals were improper, the limited

authority supports a contrary conclusion. Thus, while I am not

54 convinced that the prosecution’s use of tailored hypotheticals was

proper, I cannot conclude that the error was obvious either. See

Relaford, ¶¶ 40-42 (declining to find obvious error on the admission

of expert testimony where the issue had not yet been decided by a

division of this court or our supreme court). For that reason, I

reach the same conclusion as the majority: reversal is not

warranted.

III. Conclusion

¶ 90 Because I agree with the majority opinion in all respects

except its assessment of Ms. Young’s testimony and because I

conclude that improper admission of portions of Ms. Young’s

testimony was not plain error, I too would affirm in part, vacate in

part, and remand the case with directions for the trial court to

correct the mittimus consistent with the views expressed in the

majority opinion.