People v. Myers , 1985 Colo. App. LEXIS 1427 ( 1985 )

METZGER, Judge,

dissenting.

I respectfully dissent.

In part I of the opinion, the majority determines that the mother’s testimony, that the Department of Social Services had suggested counseling for the victim because of the sexual assault, is not evidence tending to show the victim’s credibility. Thus, it reasons, the provisions of CRE 608 do not apply. Then, in part II, the majority concludes that the mother’s testimony is relevant because “it is relevant to the occurrence of the sexual assault.” In my view, these two conclusions are logically inconsistent.

A.

The effect of the mother’s testimony was to bolster a not-yet-stated version of the events from the victim by indirectly adding an imprimatur of credibility to that version. The testimony strongly implied that the Department of Social Services held the opinion that the victim’s statement, that she had been sexually assaulted, was true. Consequently, the mother’s testimony was opinion testimony.

However, because it did not meet the requirements of CRE 608(b), I believe that its allowance constituted reversible error. First, contrary to the mandate of CRE 608(a)(2), the victim had not yet testified at trial. Therefore, her character for truthfulness had not been attacked. Second, the mother’s testimony goes far beyond the requirements of CRE 608(a) and (b), and deals with a specific instance of truthfulness, i.e., the report to the Department of Social Services. As we held in People v. Koon, 713 P.2d 410 (1985), the allowance of such testimony constitutes reversible error.

B.

The only way the mother’s testimony can be relevant to the occurrence of the sexual assault is if one views the Department of Social Services’ suggestion of counseling as a reflection of its opinion that the victim’s report of the sexual assault was credible. If that is the case, then the mother’s testimony falls squarely within the ambit of CRE 608(a) and (b).

Consequently, I would hold that the mother’s testimony is prohibited by the language of CRE 608 and our decision in People v. Koon, supra, and that its inclusion was reversible error. Hence, I would reverse defendant’s conviction and remand the cause for a new trial.