People v. Aldrich

safety place of or embark on a different dispositive,

course of action was not as she Thus,

was unable to do so. the court held pedestrian

that the woman awas when her

body came into contact with the insured’s

vehicle. reasoning find Berg

We

persuasive concerning interpretation

“alighting and, from” consistent with the

provisions supreme of the Act and our opinion in

court’s Rose Allstate Insur- Co., supra.

ance

According facts, undisputed to the after impact

the initial Bibeau was fell thrown or motorcycle

off his and landed under the

truck. Within a few seconds after Bibeau muffler,

saw the the truck rolled over his facts,

chest. Under these we conclude as a law,

matter of that at the time the truck him,

rolled over person Bibeau was not a

who was a vehicle or who had

begun the alighting immediate act of from vehicle, Co., Rose v. Allstate Insurance

supra, and “pedestrian” was a within the

meaning of the Act.

Accordingly, reversed, judgment

and the cause is pro- remanded for further

ceedings opinion. consistent this REED, JJ.,

METZGER and concur. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee,

Douglas ALDRICH, D. Defendant-

Appellant.

No. 90CA0871. Appeals,

Colorado Court of

Div. V.

Aug. 1992.

Rehearing Sept. 10, Denied 1992.

Certiorari Denied March 1993. Gen., T. Norton, Raymond permitted Atty. maga- A. introduction of Gale Gen., Atty. Timo- Slaughter, Deputy depicting explicit Chief zines sexual matters Gen., Timothy R. thy Tymkovich, M. Sol. which had found in been a basement crawl Gen., Denver, Atty. Twining, Asst. space during the execution of search war- plaintiff-appellee. rant at the defendant’s shortly home after allegations the of sexual abuse had been Vela, De- F. Colorado State Public David Hamilton-Fieldman, fender, Depu- did not identify Lisa D. made. C.H. see or these Defender, Patrick Mulli- ty Public J. magazines State trial. at Defender, Den- gan, Deputy State Public B.H., old, years was then who seven ver, defendant-appellant. testify. Despite also called to her earlier that statements defendant had touched her Opinion by Judge ROTHENBERG. sexually, at trial B.H. was unable to identi- defendant, Aldrich, Douglas appeals The fy the defendant and testified that “noth- judgment jury entered on the conviction ing happened bad” had to her. After that finding guilty him of three counts verdicts objec- and over the defendant’s assault on a child. We affirm. of sexual tion, permitted deputy the court sheriff August In the defendant’s two testify concerning B.H.’s earlier state- nieces, B.H., five, C.H., seven, age age and him ments to which did describe sexual M.W., six-year-old daugh- together with the B.H. the conduct toward defendant. friend, spent family ter of a two weeks defendant, wife, treating psychotherapist their M.W.’s also tes- with the his young son at their home. professional tified as an about the standards used to the now assess credibili- later, Eight following months a school ty of children who make accusations of program prevention, on sexual abuse C.H. During testimony, sexual abuse. alleged that the defendant had assaulted referred to certain of M.W.’s during August the visit. She regarding the sexual assaults the defen- girls ques- were then and the other two against girls. dant her and the other parents police their and the tioned object all three made similar accusations. defendant did not to this charged The defendant was in a three- Although the court denied the defen- information, count and a trial was held pre-trial compel prose- motion to the dant’s February opening 1990. his state- specific cution to elect the incidents of con- ment, having given prior without notice trial, rely at duct which would so, his intent to do defense counsel told require prosecution court did to elect jury that C.H. had been victim of specific incidents at the close of the trial. previous incident of sexual abuse and that specific identified These incidents were also perpetrator was not defendant. The jury’s in the instructions. granted People’s motion to strike The defendant now contends that the tri- any and to exclude reference to that inci- by: (1) refusing al court erred to admit grounds that the defendant had dent on the assault; (2) evidence of C.H.’s sexual procedural require- failed follow statute, spe- rape requiring prosecution shield not to elect ments Colorado’s (1986 8B). Repl.Vol. C.R.S. cific incidents of abuse until the instruction trial; (3) phase giving limiting trial, At both C.H. and M.W. testified concerning transaction instructions similar specific concerning numerous incidents of evidence; (4) allowing hearsay during their two week visit sexual assault psychothera- deputy sheriff and the with the defendant. C.H. also testified children told them pist about what maga- the defendant had shown her instructions; giving cautionary jury without containing pictures naked “grown zines maga- (5) admitting explicit adult boys” and that he had told up girls and probative value was her, zines because their you’re going grow up.” “This is how prejudi- Later, substantially outweighed by their objection, over defendant’s price in court as tional abuse of their reject all of defendant’s effect. We cial cooperation prosecuting sex offenders.” contentions. It strikes a balance between the defen- I. right dant’s to confront his accuser and privacy by “conditioning interest victim’s Budis, N.J.Super. Citing State of evidence of the victim's sexual admission (1990), the defendant A.2d 283 preliminary history on the defendant’s involuntary conduct is argues that showing it is relevant.” rape shield protection not within McKenna, supra. conduct evidence of such statute because infer- “any of the classic does not establish Although Assembly neither the General He meant to interdict.” ences the law was “prior the term nor our courts have defined that, by excluding claims further conduct,” jurisdic- sexual courts other assault, unconstitution- prior the court of a rape tions have construed their shield stat- his ability him to establish ally denied the prior utes to include sexual assaults. See her, and, through the defense that C.H. Oliver, 22, Ariz. P.2d 1071 v. 158 760 State precocious sexual knowl- girls other had (1988)(rape shield case law extends to child mistakenly attrib- edge or that C.H. children molestation cases because per- conduct of another uted the assaultive adversely than even more affected adults disagree. him. son to We by inquiry); unwarranted or unreasonable (1986 Repl.Vol. Section C.R.S. Johnson, 110, 102 N.M. P.2d State v. 692 8B) in- specific of provides evidence (1984) (statute by 35 is not limited to sex subsequent prior or stances of victim’s consent, prior rape is sexual conduct presumed is to be irrelevant sexual conduct statute). meaning within of But see State it is of sexual conduct with unless evidence Carver, Wash.App. “the source or the defendant or evidence of (1984)(rape apply shield statute does not semen, disease, pregnancy, any or origin of conduct). nonconsensual sexual of- similar evidence of sexual intercourse procedural provisions rape of the showing purpose fered for the that the court, permit statute rather than shield charged or not commit- ... acts were were evidence, proponent determine ted the defendant.” the relevance of such evidence. The in statute, Under the if neither of these hearing presentation camera allows a full exceptions applicable and the defendant proof of the defendant’s offer of without present of the victim’s wishes subjecting public airing the victim to a conduct, file prior sexual he must a written voluntary involuntary past or sexual con- stating an affidavit his offer of motion and By requiring duct. the determination to be trial, days proof thirty prior to after which trial, jury’s made before and out of the hearing an the court must hold in camera presence, only protects the statute proposed to determine if the evidence is humiliation, from harassment or but victim pending relevant to a material issue legitimate also serves the state’s interests case. preventing surprise at trial and undue rape delay. shield enact- Before statute was ed, previous evidence of sexual conduct reasoning Accordingly, adopt we could be used to undermine a sexual as- purposes held that the courts which have rise sault victim’s rape of the shield statute are served consented, inference that the victim had an requiring preliminary judicial determina- discouraging reporting thus victims from prior sexual as- tion of the relevance prosecuting sexual assaults. sault.

McKenna, 367, 585 P.2d 196 Colo. (1978). Here, major pub- the defendant The statute “reflects a knew before policy Assembly lic decision trial that C.H. had been assaulted General thus, he could have com previously, ... that victims of sexual assaults should procedural requirements of subjected psychological or with the plied not be emo- This it concluded that rape shield statute. accused can obtain adequate prepare information the court to determine whether a defense allowed document, through charging prelim- assault rele- evidence of the earlier inary hearing, by substituting judg- discovery process. his and the vant. court, Additionally, the of the the defendant Thomas court ruled that ment for that purposes prosecution specific if the does protective defeated the not elect incidents, jurors must statute. be instructed that: order to find the defendant “[I]n holding rape of our that the view guilty they unanimously agree ... must encompasses involuntary statute shield either defendant committed the meaning acts within the same individual act or acts or that he com- conduct, necessarily reject the we defen mitted all of the acts described rape that the shield stat dant’s contention victim.” applied. ute was unconstitutional See Here, although the trial court denied the Lucas, U.S.-, Michigan v. 111 S.Ct. pre-trial compel defendant’s motion to (1991) (failure 114 L.Ed.2d 205 election, trial, at the close of the the trial comply hearing require the notice and compel prosecutor court did to elect the rape ments of a state’s shield statute could specific incidents of conduct preclusion evidence). justify relevant relied. All of such incidents had occurred Here, prevent the trial court did not during period the two week when the chil- complying defendant from with the statuto- dren had visited defendant’s home. Fur- ry pretrial procedures hearing to obtain a ther, jury ultimately was instructed as Rather, on the relevance of the evidence. specific to the incidents which the defendant chose not do so. based, charges given and it was also comply, of this failure to face the court unanimity requirements a instruction. The properly applied statutory presumption of Thomas therefore were satisfied in all of irrelevance. respects. People, See also Woertman v. (Colo.1991). 804 P.2d 188 II. reject We also the defendant’s con The defendant next contends that giving tention that the court in erred a

he was denied a fair trial because the court limiting pursuant instruction 16-10- § require specific did not election of incidents 301(3), (1986 8A). Repl.Vol. C.R.S. phase of abuse until the instruction of the trial. He further asserts that this error statute, Under this evidence of simi exacerbated court’s failure to may lar transactions be introduced to show give limiting pursuant instructions 16- § scheme, plan, design, identity, a common 10-301, 8A). (1986 Repl.Vol. Again, C.R.S. operandi, motive, guilty knowledge, modus disagree. we gives limiting or intent if the court a in many reception If there is evidence of struction at the time of the acts child, general any again sexual assault on a one of which such evidence and However, charge jury. charged, would constitute the offense to the the instruc prosecution may compelled necessary only tion be to select the when the similar wholly independent on transaction is transaction which relies for a convic tion, Geller, jury agree charged. People to ensure unanimous crime v. 189 Colo. both 338, (1975). ment the defendant committed the 540 P.2d 334 prepare same act and to enable him to a involving continuing pattern In cases People Estorga, defense. 200 Colo. children, very young of sexual abuse (1980). 612 P.2d 520 primarily the evidence consists statements, People, likely in Thomas v. 803 P.2d children’s it is not (Colo.1990), they clearly identify specific 144 the court ruled that such will in- particular place. election need not made before the took con- stances when acts Rather, prosecution’s difficulty clusion of the case. People, supra. Thomas v. specif- presenting limited to a When a child is a victim of an un offense, permits ic incident in such cases was discussed lawful sexual 13-25-129 § Brown, Wash.App. 780 the admission into evidence State v. (1989): statements which are not P.2d 880 otherwise ad rule, missible under the statutes or court Particularly when the accused resides provided gives the court in cautionary virtually or has un- with the victim struction to the both at the time child, to the and the checked access again gener evidence is received and regular has occurred on a basis abuse charge. McClure, al P.2d pro- in a consistent manner over a time, may longed period of child point of time or meaningful no reference A. distinguish specif- one detail which frequent another. The more ic act from Here, B.H. testified at trial that the abuse, likely the more repetitive “anything defendant did not do bad” to victim it becomes that the will be unable Thereafter, treating her. certain state places. specific to recall dates More- deputy ments made B.H. to a sheriff as usually over because the molestation oc- being inconsistent statements of a witnesses, presence of curs outside the court, witness, acting pursuant permanent physical no and often leaves (1986 9A), Repl.Vol. C.R.S. evidence, the state’s case rests on the permitted deputy sheriff to memory of a victim whose B.H. told him that the defendant had mo by a blur of and a be clouded abuse lested her. Montoya We consider v. Peo forget. (Colo.1987) desire to ple, dispositive and, therefore, perceive this issue no error Although here and M.W. did refer C.H. ruling. in the trial court’s to numerous sexual assaults committed Montoya, supreme our court held that against during them the defendant prior 16-10-201 a allows inconsistent § testimony period, two week this was not impeachment statement to be used for or to similar transaction evidence offered to establish a substantive fact. scheme, intent, plan, prove design. or when the statement is introduced to estab- Rather, difficulty reflected the lish a substantive fact and the witness de- young differentiating children have in truth, require- nies its certain foundational among various acts of sexual occur- abuse ments must be satisfied before extrinsic ring period over a of time. proof of the statement is admissible. The We conclude that because this witness, testifying, while must either be concerned various acts of sexual assault given opportunity explain an or must be integral part which an were offense trial, available to further at the charged, with which the defendant was the statement must relate to matters with- 16-10-301(3) statutory requirements of § knowledge. the witness’ own Montoya apply. do not People, supra. v. However, even when a witness is III. given opportunity explain deny not an statement, prior a the court does not err in The defendant next contends the court permitting concerning extrinsic evidence applied wrong statute when admitted the statement if the witness remains avail statements, and, hearsay children’s a as able to Montoya further result, properly not was instruct Stewart, People, supra; People v. v. 13-25-129, ed. He asserts that C.R.S. § (1977). Colo.App. 142, 568 P.2d 65 (1987 6A) Repl.Vol. is the exclusive means through hearsay testimony years age which of Children under ten of appear incapable receiving just child sexual abuse victims should be admit of im who disagree. respecting ted. of pressions We the facts (failure (Colo.1987) give cautionary in relating them or of examined they are plain struction not error where witnesses. Section truthfully not be 6A). non-expert De- one witness did not disclose (1987Repl.Vol. C.R.S. act, of and was introduced to a witness of details competency of termining testimony that for the trial corroborate victim’s victim ordinarily is years tender abuse). reported court, dis- had unless there is an abuse of cretion, will not ruling question a on Testimony concerning person’s another People v. Alexan- on review. disturbed hearsay only out-of-court statements if it (Colo.1986). der, P.2d prove the truth the matter is offered to of 801(c).

Here, in the although provide did an asserted statement. CRE B.H. not Court, (child-vic- supra v. People District inconsistent statement explanation for her the court neverthe- tim’s statements were because deputy, sheriffs competent they prove identity a witness offered to less found was therefore, testify. her); and, person “available” to See who abused W.C.L. Court, (victim’s (Colo.1984) People, 685 P.2d 176 People v. District identity prove per- there is evidence statements offered to Because decision, her). support the court’s son who abused the record we find no abuse of discretion. however, Here, psychotherapist was (cid:127) relating statutory prerequi- purpose called Consequently, met, and the what M.W. had told her. 16-10-201 were substance of sites § Rather, hearsay testimony properly was she testified as witness sheriffs exception statutory purpose profes- under that describe admitted sionally accepted inconsistent statement. validation criteria used a witness' supra. Accordingly, of children Montoya People, experts assess the requirements claiming explained 13-25- She procedural sexual abuse. 6A) (1987 years im- Repl.Vol. are not validation criteria arose from C.R.S. 10,000 over plicated. research and involved cases reported being which children B. had ad- in which all offenders abused and of these argues that the mitted the abuse. As result The defendant also studies, agree concerning researchers were able psychotherapist’s criteria which made to her number common out-of-court statements up and over therapy “kept showing and over during the course of over M.W. subject proce again.” the to statements of requirements 13-25-129. dural § explained in psychotherapist The detail disagree. Again, we which included: nature of these criteria the reported (1) how the child the testimony that this re and when Initially, we note molestation; (2) the details whether only one of the three children and sexual lated to appear repeated consistent or made to the when remain that M.W.’s statements were telling; (3) the child story whether therapist purposes diagnosis of medical to be Further, 803(4). programmed or engages in remembered and treatment. CRE See (4) language is of a telling; statements constituted whether the out-of-court (5) age; with the victim’s portion psychothera type consistent only a minor language is child’s nonverbal testimony defendant nei pist’s lengthy and whether abuse; (6) request with whether objected testimony to the nor consistent ther leading sug- subjected or has cautionary instruction under 13-25- child been ed a intimidation; (7) McClure, questions or supra (plain gestive 129. See (8) multiple witnesses, episodes; including there were five two whether error to allow allegedly perpetrator did police experienced in means experts and a officer what engage the child to assault, extensively or force use induce child sexual coercion, assault). activity entice- in such sexual as to details victim’s (9) ment, manipulation; or whether Wood, People v. 743 P.2d But see relating pres- to the research criteria to the promises made threats perpetrator detail, explicit consistency (10) ence of telling; whether the child from prevent reporting repeated, and the details when explicit context explicit detail and there is multiple episodes. experience; emotional arising from a true perpetra- (11) relationship of the what reported Similarly, therapist when child; (12) cogni- and what tor is to the prom- M.W.’s statement that defendant development of the child is social tive and candy” he “would her and later ised age. chronological to his or her relative said, tell, your parents,” I kill you “If will presented was not to show witness, these According expert to the defendant had made the statements or experts in she and other criteria are what he act in accordance with the look for “in of child sexual abuse the field statements, rather to show that M.W. but subsequent in interviewing and then initial applicable another of the above criteria met interviewing therapy even in with chil- validity reports assessing of sexu- supposedly have been dren that abuse, coercion, enticement, namely the al molested.” manipulation perpetrator. used therapist that she used The testified And, expert explained that since the one during her treat- these criteria with M.W. reliability important suggesting criterion presence observed the ment of M.W. and child-appropriate language, the the use of accepted re- every professionally validation jury apply that criterion not was able Thus, tes- garding accusations. her M.W.’s statements, only also to as- to M.W.’s but prove offered to the truth timony was not seven-year-old sess the C.H.’s her, rather as statements to but of M.W.’s pri- that the defendant’s “front criteria backdrop explain the validation mouth,” up my and that the vate threw jury application and their to the for the magazines con- defendant had shown People Fasy, 829 P.2d present case. See taining grown up “girls pictures of naked (Colo.1992)(expert’s opinion that child boys.” expert’s par- criteria also sexual assault suffered from victim of tially explained the context of B.H.’s testi- post-traumatic stress disorder admissible “nothing hap- mony at trial that bad” had expert’s testimony under CRE 702 because pened to her which recanted B.H.’s earlier understanding victim’s assisted the statements, difficulty as well as B.H.’s behavior). post-assault temporal relationships. that, applying true when the above It is sum, the content of M.W.’s was not situation, did criteria M.W.’s psychotherapist to her that was relatively certain brief references make here; rather, important significance statements M.W. which were nec- actual explain this witness’ in the context of her essary child scientific data the area of abuse example, reported that M.W. drew For relating jury by and to assist how reflecting the defendant picture statements fit into that criteria. M.W.’s Also, private part.” “rings attached to his specified the noted that M.W. had 604, 609 Myers, In 359 N.W.2d State activity oc- places in which the sexual (Minn.1984), Supreme the Minnesota Court curred, i.e., creek, living in the “at the emo- faced the related issue of whether And, room, and in the shower.” she testi- psychological tional or characteristics ob- she felt defen- fied that M.W. had said sexually in children are a served abused “private part” against her back dant’s proper subject expert There, here, that it felt “weird.” expert the shower and certain related by complain- her statements made to However, although did other evidence here, And, there as importantly, ant. the truth of M.W.’s state- tend to show opinion that the therapist did not her ments, therapist testimony was allegations were truthful. child’s Rather, the statements not so directed. found no error so by therapist only The Minnesota court were used show expert giving from by long as the refrained given the level of detail M.W. fit IV. allegations complainant’s opinion that her and stated: truthful Finally, conclude that the trial we an indirect no doubt that can be There commit reversible error in court did not expert’s] portion of of that [the effect sexually explicit magazines admitting the complain- testimony towas bolster home. in the defendant’s found expert credibility. Much ant’s may excluded Relevant evidence be witness either that another tends to show substantially probative if value is out its fact, telling truth. That not is or is prejudice. weighed by danger of unfair itself, not render the by does proba The determination of the CRE 403. not whether The test is inadmissible. prejudicial impact of value and the tive an ultimate testimony embraces opinion generally within the trial evidence is jury but decided issue to be and will not be disturbed court’s discretion testimony, if expert’s or not the whether an abuse of discretion. on review absent understand believed, help jury will White, People v. 199 Colo. a fact or to determine the evidence (1980). issue. the court to reviewing

In the decision of evidence, must the maxi- “we assume admit that a reasonable fact probative mum value child of a abused In the case the min- might give the evidence and finder often jurors are is irrelevant and consent reasonably ex- prejudice imum unfair be veracity of a determining the faced with Lowe, P.2d pected.” People v. of a course of child tells young who over an ill-defined carried on conduct Here, that because the court determined uncer- appears who time frame and those de- magazines were similar to accuser who tain or ambivalent found in the and were scribed C.H. Background providing data recant. even the defendant had where she said location puzzling as- insight into the a relevant her, they magazines to corrob- shown such demean- child’s conduct and pects of the therefore testimony and were orated C.H.’s not otherwise jury could or which magazines con- Although the relevant. bring its evaluation of unusual sexual graphic portrayals of tained appropriate in cases helpful and is practice behavior, although the better children, particularly sexual abuse of least, have, limited might have at been [young] children. those de- magazines to the admissible (8th Pierre, 812 F.2d 417 v. St. Accord U.S. C.H., say that cannot we scribed Cir.1987)(clinical permitted to psychologist determining its discretion court abused and characteristics testify to certain traits unfairly preju- not compare children and sexually abused into evidence. by their admission diced victim). those exhibited them to affirmed. judgment Here, People that the agree we permissi- psychotherapist’s J., DAVIDSON, concurs. incidental testimony and that the ble STERNBERG, C.J., dissents. M.W., expert by made to the context, hear- were not used in this when dissenting. Judge STERNBERG Chief Thus, provisions of 13-25-129 say. view, court erred both Bolles, my the trial apply. See Schmutz do to Thomas, deputy sheriff permitting (Colo.1990); v. Banek P.2d 1307 statement of B.H.’s (unless the content evi- about (Colo.App.1984) 697 P.2d of the admitting the evidence by him and in hearsay defined as dence constitutes through out-of-court excep- children’s rule, nothing to which the there is without psychologist testimony of the may apply). See rule tions to mandat- as cautionary instruction giving a Fasy, supra. People v. also McClure, by People review, ed v. P.2d 864 of I would hold it was error to (Colo.1989). admit this evidence. Also, I would hold the court abused questions Three face the trial in admitting in its discretion into evidence the 1) applying CRE proffered 403: is the evi- pages of pornographic

hundreds materi- legally dence material to a factual issue view, my al defendant’s home. found In case; 2) does the evidence make the the tenuous relevance of such material consequential existence of a fact more or of C.H. far bolster was out- probable less it would than be without the weighed prejudicial impact. its evidence; 3) probative and is the value of substantially outweighed the evidence Accordingly, although I agree with the danger prejudice. of unfair People v. majority’s treatment the other issues Carlson, (Colo.1986). 712 P.2d 1018 raised, I respectfully dissent its affir- from judgment. of the mance probative The value magazines of was minimal. The record only indicates

I. that, that the court believed because the magazines were found where C.H. had said Explicit Sexually The Exhibits. they were, they corroborated her testimo- disagreement My point first with the ny. C.H. was not asked iden- majority ruling relates to trial court tify magazines being those the de- accepted maga- into evidence seven her, and, indeed, fendant had shown most containing pages pho- zines hundreds of appear of them type be of a different tographs depicting explicit, graph- text Furthermore, than described. no es- ic, behavior bizarre sexual adults. the charged sential element of criminal acts photo- Some this material consists of depended proof for its on the admission of graphs prominently displaying individuals magazines. And, the existence and apparently possessing both male and fe- magazines nature of the could have been photos male characteristics. Other through deputy’s established depict “devices” use in deviant sexual prejudicial being without their nature re- my view, admitting acts. into evidence jury. vealed See United States v. explosively this prejudicial merely material (9th Cir.1985) (avail- Layton, 767 F.2d 549 to bolster the of the child wit- ability of other evidence is a factor to be that, ness while in the basement of defen- balancing probative evaluated in value and house, dant's she had been shown nude prejudicial impact). photographs was an abuse of discretion. By contrast, prejudicial impact primary impact The of this material magazines significant. preju- Unfair juror would be to the average inflame dice, as the term is used CRE refers unfamiliar, whom such material be to evidence tends suggest decision offensive, highly possibly disgust- even basis, improper commonly on an an emo- ing jurors sickening. This could lead hatred, one sympathy, tional “such as con- to reach the emotional conclusion that de- retribution, tempt, People horror.” person deserving pun- fendant is a “bad” Court, (Colo.1990). District irrespective of partic- ishment whether the charges proven. ular here at issue had been If ever there a case in which the scale Thus, any purpose bolstering valid weigh probative against used to value un- C.H.’s must been lost prejudice strongly fair tilts toward lat- hostility engendered by the material. ter, this is such a case. recognize I appellate review rele- II. vancy decisions is limited and that “we probative must assume the maximum value A. might give that a reasonable fact-finder Deputy’s Testimony about B.H.’s evidence and the minimum prejudice unfair Hearsay Statements. expected.” reasonably Lowe, only presented concerning P.2d 1261 Never- theless, even applying any alleged this strict acts defendant directed to- standard depu- pos- that such examination is reported in the which insures those B.H. were ward Indeed, sible, specifically Consequent- B.H. were not satisfied here. ty’s not did deputy’s testimony at that the defendant should ly, testified trial the not have Thus, to her. conviction “anything bad” the report prior do admitted as of a been count the sexual assault defendant on inconsistent statement. hinges hearsay tes- concerning on this B.H. Although deputy’s testimony the not was timony. specific hearsay excep- a admissible under testimony majority that the The reasons tion, testimony might properly the previ- what B.H. had deputy the about pursuant 13-25-129 had been admitted to § a properly admitted as ously told her was procedural require- court followed the the impeach statement to or prior inconsistent so, of that statute. did not do ments It However, fact. establish a substantive although neither the defendant nor the received, testimony the such can be before prosecution requested the court the impeached given must be witness cautionary required by the instructions deny prior explain opportunity to or statute, failure reversible such constitutes statement, must be avail- inconsistent McClure, People supra. error. See trial, and the further at the able relate within must to matters statement B. knowledge. Montoya v. the witness’ own P.2d 992 People, 740 Psychologist’s Hearsay Testimony. The not requirements The first these was majority’s con- disagree I also with the testimony. Al- B.H.’s trial satisfied in psychologist’s clusion her though questioned was child about concerning out-of-court sheriff, deputy her earlier statement properly was received. M.W. explanation nor a were neither an answers agree majority that much I do with denial. psychologist’s testimony not was Also, view, my trial court erred However, begs improper. that conclusion finding to testi- that B.H. was “available” question. perceive I no Contrary majority, to the fy. spe- as to psychologist testified When evidentiary support trial court’s for the her, such cific statements made M.W. Instead, finding. the record demonstrates properly re- would have been evidence competent a qualify B.H. not as did if, ceived, only if the dictates witness. McClure, supra, had been followed. fraught so of B.H. was contemporaneous cautionary illogical state- inconsistencies and given the testimo- was not when instruction She un- to be credible. was ments received, in- cautionary nor was a ny was truth about the difference between sure given at conclusion struction responses prose- to both the and lies. Her under the situ- Failure to so instruct case. unrespon- were and defense counsel cutor Reference requires here reversal. ation And, confusing. she was unable sive objectionable out-of-court just some of the relationships, as temporal understand statements follows. she shown although she told her the years, discussing for ten what M.W. known M.W. In therapy, psycholo- she testified. only during at the time the course of seven stated: gist statutory 16-10-201 creates Because § uh, through, And then she went permits exception which where, when, in the inter- the how fact, prove a substantive admitted to to be viewing process.... There several important that there be particularly it is creek, in indicated, at that she places who examine the witness opportunity to living in the shower where room and con- inconsistent statement made the uh, different, activi- view, described my cerning discrepancy. place at those taking that were ties requirements of § foundational rings She ... times. described on penis they seen she had when James T. PERKINS and Nettie G. taking together.

were shower And Perkins, Plaintiffs-Appellants, also at creek as she described as the event, skinny dipping shower event COMPANY, FLATIRON STRUCTURES place

took two or times. three She de- Defendant-Appellee. specific scribed detail that she felt private part rubbing what called his No. 91CA10I9. up on her back. Appeals, Colorado Court of And, describing the use of “child lan- Div. II. guage,” psychologist testified that: She described event where [M.W.] Aug. 13, 1992. they in the tent with she indicat- Rehearing Denied Oct. 1992. ed Mr. Aldrich and he taken their tops girls off of all Certiorari Denied March three and would not 1993. described, uh, back. them She three two or incidents shower. comparable

These circumstances are

those which concerned the McClure might

court— imbued jury special credibility with

together details of the conduct corrob-

orating other As the McClure stated, in the absence of a cautionary making jury

instruction aware of the here,

suspect evidence, nature of

“the its responsibil- failed in

ity to examine the of the source

of these statements.” conclusion, I recognize, as does the

majority, that sexual abuse children is a seemingly growing problem

serious and society

our and that when such a crime is

proved punishment to have occurred severe justified. Nevertheless, we cannot allow disgust

our at the crime to cause us to

circumvent principles established of evi- Especially

dence. is that true under the

circumstances here in which the al- law

ready provides for exceptions reasonable evidentiary requirements

strict with safe-

guards against unfairness defendants. above,

For reasons stated I respect-

fully opinion; dissent from the majority I reverse conviction and remand

for a trial. new

Case Details

Case Name: People v. Aldrich

Court Name: Colorado Court of Appeals

Date Published: Aug 13, 1992

Citation: 1992 Colo. App. LEXIS 319

Docket Number: 90CA0871

Court Abbreviation: Colo. Ct. App.