2018 COA 47
Colo. Ct. App.2018Background
- Victim (then 8) disclosed years-old sexual contact by defendant Roger Lee Short (fondling; alleged digital/anal penetration and naked dancing); family observed physical signs and behavioral changes.
- Short had a relationship with the victim’s grandmother and had access to the child; charged with sexual assault on a child and sexual-assault–pattern-of-abuse counts (two sets: fondling and digital penetration).
- At trial the jury acquitted on the digital-penetration counts but convicted on the fondling count and the pattern-of-abuse finding; court imposed concurrent indeterminate sentences, the longer 9 years to life.
- Defense theory: allegations were suggested by repeated family questioning and explainable by medical/behavioral causes; defense called experts to rebut abuse and contamination of interview.
- Trial evidence issues on appeal: (1) prosecution’s expert (a “blind” therapist), a detective, and the grandmother gave testimony the defense later argued improperly bolstered the victim’s credibility; (2) prosecution introduced part of Short’s recorded interview ("someone’s abusing her") but the court, applying the rule of completeness, said the defense could not admit the complementary exculpatory phrase without exposing Short to impeachment by prior felony under CRE 806.
- Appellate disposition: affirmed convictions in part, vacated one conviction/sentence (duplicate pattern-of-abuse enhancement), remanded to correct mittimus; held certain evidentiary rulings erroneous but harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor/expert/detective/grandmother testimony impermissibly bolstered victim | Testimony explained typical child disclosure/behavior and was admissible to aid jury, not to vouch | Testimony impermissibly vouched for victim’s truthfulness and should have been excluded | Therapist & detective testimony permissible; grandmother’s lay vouching improper but not plain error (harmless) |
| Whether defense could force admission of exculpatory portion of defendant’s recorded statement under rule of completeness (CRE 106) | Prosecution offered part of the statement; fairness required admission of remainder (including defense-favorable denial) | Court ruled remainder admissible under completeness but subject to impeachment by prior felony under CRE 806, chilling defense | Court held trial court misapplied completeness: proponent who offers part must admit the relevant whole or none; exculpatory remainder is admissible under CRE 106 and prosecution cannot condition its admission on impeachment under CRE 806 |
| Whether impeachment under CRE 806 may be used against a defendant when remainder-of-statement is admitted under completeness | Prosecution: if remainder is self-serving hearsay, Rule 806 permits attacking declarant’s credibility (including prior felony) | Defense: allowing impeachment in that circumstance lets proponent gain benefit and shift costs of admission to opponent, undermining Rule 106’s fairness | Appellate court adopted view that prosecution must choose to admit complete statement or admit none; cannot force impeachment costs onto defendant — trial court erred in allowing conditional admission subject to CRE 806 |
| Whether conviction/sentence duplicative (pattern-of-abuse vs. underlying offense) | People conceded jury’s single verdict supports only one conviction; pattern finding operates as sentence enhancer | Short argued duplicate convictions/sentences improper | Court agreed with People and Short: vacated simple sexual-assault conviction/sentence (pattern of abuse functions as enhancer); remanded to correct mittimus |
Key Cases Cited
- People v. Mintz, 165 P.3d 829 (Colo. App. 2007) (permits blind expert to answer hypotheticals about typical behaviors of abused children to aid jury understanding)
- People v. Morrison, 985 P.2d 1 (Colo. App. 1999) (expert testimony about typical victim behavior admissible to explain otherwise puzzling conduct)
- People v. Davis, 218 P.3d 718 (Colo. App. 2008) (held self-serving exculpatory statements may be excluded under completeness — declined to follow)
- People v. Fasy, 829 P.2d 1314 (Colo. 1992) (expert testimony can assist jury in understanding child-victim behavior)
- People v. Melillo, 25 P.3d 769 (Colo. 2001) (rules of completeness codified in CRE 106)