2021 COA 18
Colo. Ct. App.2021Background
- Between 2013–2014 Collins lived with and sexually abused T.M., who was 3–5 years old when the incidents occurred; disclosures to family, counselor, and police followed.
- Forensic interviews were recorded in 2013 and 2014; T.M. later identified Collins in one interview and drew his genitals for a detective.
- Collins was charged with multiple counts of sexual assault on a child; there were two jury trials (first ended in mistrial); T.M. testified at both trials.
- Before the second trial the prosecution moved to allow a court facility dog (Tillie) to sit at T.M.’s feet while she testified; the court permitted the dog to sit out of jurors’ view.
- Collins was convicted and sentenced to concurrent indeterminate terms; he appealed raising four issues (competency, confrontation/dog, expert testimony, and mittimus error).
Issues
| Issue | People’s Argument | Collins’s Argument | Held |
|---|---|---|---|
| Competency of child witness | Court properly evaluated competency (hearing + recorded interviews) and T.M. could relate events in age-appropriate language. | T.M. was too young/incapable; court erred by relying on prior recordings and misapplied competence standard. | Affirmed — court acted within discretion; recordings were relevant and record supports competence finding. |
| Use of court facility dog / Confrontation Clause | Dog aided testimony without blocking face-to-face confrontation; all Confrontation Clause requirements were met. | Dog softened witness’ discomfort, undermining reliability and violating right to confrontation; prosecution should have shown necessity. | Affirmed — easing witness’ discomfort doesn’t violate confrontation; no heightened necessity showing required and court’s findings supported. |
| Expert testimony (improper bolstering) | Expert testimony about typical victim behavior was admissible; any erroneous answers were harmless. | Prosecutor’s questions elicited improper opinions on victim’s veracity and sophistication to lie (impermissible bolstering). | Affirmed — court erred in parts (improper questions), but errors were harmless (answers did not substantially influence verdict). |
| Mittimus contains pattern language erroneously retained | N/A (People dismissed pattern charge during trial). | Mittimus incorrectly reflects a pattern-of-abuse enhancer that was dismissed. | Remanded — clerical correction ordered to remove pattern language on count 2. |
Key Cases Cited
- Coy v. Iowa, 487 U.S. 1012 (U.S. 1988) (screen blocking defendant’s view of child witness violated Confrontation Clause)
- Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (Confrontation Clause generally requires face-to-face testimony, oath, and opportunity for cross-examination)
- Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987) (competency hearings generally avoid substantive trial issues)
- People v. Wittrein, 221 P.3d 1076 (Colo. 2009) (expert witnesses may not opine on a witness’s credibility or whether a child fabricated abuse)
- People v. Dist. Ct., 776 P.2d 1083 (Colo. 1989) (trial court has broad discretion in conducting competency hearings)
- People v. Trujillo, 923 P.2d 277 (Colo. App. 1996) (manner and scope of competency examination left to trial court’s discretion)
- People v. Snook, 745 P.2d 647 (Colo. 1987) (expert testimony tending to directly bolster victim’s truthfulness is improper)
- People v. Vialpando, 804 P.2d 219 (Colo. App. 1990) (prior evidence of a child’s ability to relate events is relevant to competency)
- People v. Glasser, 293 P.3d 68 (Colo. App. 2011) (experts may testify about whether a child’s behavior is consistent with abuse, not about credibility)