in the Interest of D.F.A.E , 2020 COA 89 ( 2020 )

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
June 11, 2020
2020COA89
No. 17CA0042, People in the Interest of D.F.A.E. — Juvenile
Court — Delinquency; Juries — Voir Dire — Juror Bias —
Challenges for Cause — Peremptory Challenges
The juvenile defendant was adjudicated delinquent for acts
that, if committed by an adult, would constitute sexual assault and
enticement of a child. On appeal, a division of the court of appeals
considers whether the juvenile court abused its discretion in not
excusing a juror who voluntarily disclosed relevant, personal
information after voir dire but before trial. Applying the factors set
forth in People v. Christopher, 896 P.2d 876 (Colo. 1995), the
division concludes that it did not. In doing so, the division further
concludes that under People v. Novotny, 2014 CO 18, and Vigil v.
People, 2019 CO 105, the loss of a peremptory challenge resulting
from a juror’s late disclosure is not so presumptively prejudicial as
to require reversal.
The division further rejects the juvenile defendant’s
contentions that the juvenile court reversibly erred when it
admitted limited evidence of the victim’s virginity and excluded
evidence that the victim was allegedly seeking to lose her virginity.
Finally, the division concludes any error in the admission of
improper expert testimony that bolstered the victim’s credibility was
harmless.
Accordingly, the division affirms the adjudication.
COLORADO COURT OF APPEALS 2020COA89
Court of Appeals No. 17CA0042
Park County District Court No. 15JD20
Honorable Stephen A. Groome, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of D.F.A.E.,
Juvenile-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE DUNN
Richman and Yun, JJ., concur
Announced June 11, 2020
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1 D.F.A.E. (D.E.) and the victim had a sexual encounter. He
said it was consensual. She said it wasn’t. The jury agreed with
the victim on this point, and the juvenile court adjudicated D.E.
delinquent for acts that, if committed by an adult, would constitute
sexual assault and enticement of a child.
¶2 Appealing his adjudication, D.E. challenges several of the
juvenile court’s discretionary decisions. Among those, he
concentrates on the decision to retain a juror who, he contends,
intentionally withheld material information during voir dire. He
insists that this requires reversal, in part because it cost him the
ability to challenge the juror for cause or, in the alternative,
exercise a peremptory challenge.
¶3 Because the record supports the juvenile court’s findings that
the juror didn’t intentionally withhold information and that she
could be fair and impartial, we can’t conclude either that a biased
juror sat on the jury or that the juvenile court abused its discretion
by retaining the juror. And in light of the shift in precedent that
now no longer presumes prejudice from the loss of a peremptory
challenge, we also can’t agree with D.E. that the loss of such a
challenge requires reversal.
1
¶4 As to D.E.’s remaining contentions, because they challenge
rulings that were either within the juvenile court’s discretion or
harmless, we reject those as well. Therefore, we affirm the
adjudication.
I. Background
¶5 Late one night in the summer of 2015, the victim asked D.E.,
who went to school with the victim’s sister, for a ride to a friend’s
house. D.E. agreed, and while en route, he allegedly threatened the
victim with a pocketknife and forced her to perform oral sex. He
then told her to take off her clothes, sexually assaulted her, and
again forced her to perform oral sex. After this, D.E. drove the
victim back to her home, where she reported the assault to friends
and family. The victim’s mother took her to a hospital for a sexual
assault examination, and the police were contacted.
¶6 The prosecution charged D.E. as a delinquent with one count
of sexual assault (deadly weapon), one count of sexual assault, one
count of enticement of a child, one count of menacing, and two
sentence enhancers.
¶7 At trial, D.E. defended on the theory that the entire encounter
was consensual and that he never used a deadly weapon. The jury
2
rejected his consent defense and found him guilty of enticement
and one sexual assault count. But the jury acquitted him of both
counts requiring proof of a deadly weapon.
¶8 The juvenile court adjudicated D.E. delinquent and sentenced
him to six months in jail on the sexual assault count and six years
of sex offender intensive supervision probation on the enticement
count.
II. Juror Removal
¶9 D.E. first argues that the juvenile court committed reversible
error by not excusing a juror who, he alleges, intentionally withheld
material information during voir dire. We are not persuaded.
A. Additional Facts
¶ 10 Before voir dire, all prospective jurors completed a written
questionnaire that included these questions, among others:
[Question 3:] Have you (or anyone you are
close to) ever been the victim of a crime? What
type of crime? Was the crime related to sexual
assault, sexual contact, or rape? In what
jurisdiction? When? Were charges ever filed?
....
[Question 6:] Have you ever been involved in
providing any type of care or services for
alleged victims of sexual assault[,] sexual
contact, or rape?
3
If a prospective juror answered Question 3 “yes,” that juror was
then asked to “describe how this has affected your feelings about
sexual assault, sexual contact, or rape?” The questionnaire also
provided each prospective juror the option to discuss his or her
answers “in a private place, outside the presence of other potential
jurors.”
¶ 11 Juror N answered “no” to both questions and did not check
the box to indicate that she wanted to privately discuss her
answers. Neither the prosecution nor the defense questioned Juror
N much during voir dire, and Juror N was ultimately selected to
serve on the jury.
¶ 12 Right after the jury was sworn and the court was about to
dismiss the jurors for the day, Juror N indicated she needed to
speak to the court and counsel. She then stated:
I’m sorry that I haven’t said anything sooner. I
just felt like I didn’t really have a chance. But
I did say and I did swear and I believe innocent
until proven guilty. I believe in a fair justice
system and I’m in this all the way, but I’m just
an emotional person.
About 27 years ago my daughter was date
raped. She was 14 and she was seeing a boy
17, kind of without our permission. Anyway,
we just (inaudible) said no. She did get
4
pregnant, we gave the child up for adoption.
We all grew from this. It was actually — we all
grew from it. It was a good experience because
it was a family and we have a beautiful —
there’s a wonderful woman out there now and
she’s living a wonderful life. That’s all I
wanted to say.
It doesn’t — no honestly, Judge, it does not
affect me because I have also raised four boys,
and one of my sons when he was in college,
one of the girls wanted to accuse him of getting
her pregnant and he said, “Mother, I did not.”
And he had to have a patern[ity] test done to
prove that. It was DNA to prove he was
innocent and of course he was innocent, it was
not his child.
So raising four boys and having a daughter, I
understand both sides. I understand how
teenagers think and the way they are. So this
isn’t going to affect this young man at all. I
look to him as innocent until I receive all the
— and that’s just wanted [sic] to say. I
apologize for not saying anything sooner.
¶ 13 In response to a question from the court, Juror N stated, “I
absolutely still believe in a fair trial for this young man.” Explaining
her response to Question 3 on the questionnaire, she said that “we
didn’t press any charges,” “we didn’t prosecute him,” and she
“didn’t look at it as a crime I guess.”1 And when defense counsel
1 Neither the court nor the parties asked about Question 6 on the
questionnaire.
5
asked why she hadn’t disclosed this information earlier, she
responded:
I guess because you didn’t ask and you kept
asking all these other people and I didn’t want
to raise my hand and be embarrassed and
have everybody look at me like what is she
going to stand up there for. So I was a little
embarrassed.
Then, when responding to defense counsel’s question whether she
could be fair and presume D.E. innocent given her history, and
whether as a parent she would want herself on the jury, she said
that “[a]ny parent would be worried if that was their child,” but
reiterated that “it will not affect me, truthfully. Honestly.”
¶ 14 After this exchange, the court said it would revisit the issue
the next day but that Juror N was “still an active juror.” The next
morning, defense counsel asked for a mistrial or to replace Juror N
with the alternate.
¶ 15 The court denied both requests, finding that Juror N was “very
credible,” didn’t intentionally withhold information, and could “be a
fair and very unbiased juror.” The court also stated that because it
saw no “bias” or “just cause” to dismiss Juror N, replacing her with
an alternate would be “outside the scope” of the court’s authority.
6
B. Standard of Review and Governing Law
¶ 16 Because the juvenile court is in the best position to evaluate
whether a juror is unable to serve, we review for an abuse of
discretion the court’s decision to not excuse a juror. People v.
Christopher, 896 P.2d 876, 879 (Colo. 1995); People v. Drake, 841
P.2d 364, 367 (Colo. App. 1992). We will not disturb that decision
unless it was manifestly arbitrary, unreasonable, or unfair, or
misapplied the law. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004).
¶ 17 “A new trial may be required where a juror deliberately
misrepresents or knowingly conceals information relevant to a
challenge for cause or a [peremptory] challenge.” Christopher, 896
P.2d at 878; see People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983)
(“[K]nowing concealment is itself evidence that the juror was likely
incapable of rendering a fair and impartial verdict in the matter.”).
But if a juror’s failure to disclose was inadvertent, the defendant
must demonstrate that the undisclosed information “was such as to
create an actual bias either in favor of the prosecution or against
the defendant.” Dunoyair, 660 P.2d at 896. Absent a showing that
the juror was actually biased, we must assume that she followed
7
the court’s instructions and decided the case based solely on the
evidence and the law. Christopher, 896 P.2d at 879.
¶ 18 A juror’s failure to answer material questions truthfully during
voir dire may justify — but does not automatically require — the
removal of that juror and replacement with an alternate. People v.
Borrelli, 624 P.2d 900, 903 (Colo. App. 1980); see also Dunoyair,
660 P.2d at 895. In deciding whether it should dismiss and replace
a juror under these circumstances, a court should consider: (1) the
juror’s assurance of impartiality; (2) the nature of the information
withheld during voir dire; (3) whether the nondisclosure was
deliberate; (4) any prejudicial effect the nondisclosed information
would have had on either party, including the defendant’s right to
exercise peremptory challenges; and (5) the practical remedies
available when the nondisclosure is revealed. Christopher, 896 P.2d
at 879. Ultimately, however, removal is required if the court finds
actual prejudice or bias. See People v. Clemens, 2017 CO 89, ¶ 15.
C. Discussion
¶ 19 Applying the Christopher factors here, we conclude that the
juvenile court properly exercised its discretion when it allowed
Juror N to continue to serve on the jury.
8
1. Impartiality
¶ 20 First, Juror N repeatedly stated that she would be impartial,
that the experiences her daughter and son went through would not
affect her, and that she believed in “innocent until proven guilty.”
Though defense counsel questioned Juror N, none of her responses
undermined her assurances that she could be fair and impartial.
Nor did they suggest that she harbored any prejudice or bias
against D.E. or favored the victim. When asked directly, she
assured the court that she “absolutely still believe[d] in a fair trial
for” D.E. The record thus supports the court’s finding that Juror N
could be fair and unbiased. And given that “[t]he [juvenile] court is
in the best position to view the demeanor of a juror claiming
impartiality,” we won’t disturb its impartiality determination.
Christopher, 896 P.2d at 878.
2. Nature of Disclosure
¶ 21 Second, the nature of the information disclosed impacts the
victim and D.E.2 That is, while Juror N disclosed that her daughter
2 As the People note, the second People v. Christopher factor
presupposes that a juror “withheld” information during voir dire.
896 P.2d 876, 879 (Colo. 1995). Here, however, the record shows
9
had been date raped, she also disclosed that her son had faced a
paternity accusation, but that it was false and he was “innocent.”
Thus, this factor doesn’t clearly skew either way, and we can’t on
this record second-guess the juvenile court and conclude that the
information showed prejudice or bias against D.E. or that Juror N
favored the victim.
3. Intentional3
¶ 22 Third, when asked about her answers to the juror
questionnaire, Juror N explained that because her daughter had
not pressed charges, she didn’t think there was a “crime” to
disclose, and she “just felt like [she] didn’t really have a chance” to
say “anything sooner.” Juror N further explained that she did not
disclose the information earlier because no one asked her any
follow-up questions during voir dire and she “didn’t want to raise
[her] hand and be embarrassed.” Based on Juror N’s explanation,
that Juror N was never asked a question during voir dire that would
have elicited the information she later disclosed. Thus, it cannot be
said that she actually “withheld” this information during voir dire.
3 Although Christopher, 896 P.2d at 879, uses the term “deliberate”
and the juvenile court used the term “intentionally,” the parties
appear to agree they are interchangeable for purposes of this
analysis.
10
the juvenile court found that Juror N didn’t intentionally withhold
the information and that she made her disclosure in an “abundance
of caution just to be totally honest and straightforward[.]” Although
we might have reached a different conclusion if tasked with the
decision, it’s not ours to make. Given that the juvenile court’s
factual findings have record support and are based on its credibility
determination, we can’t conclude the court abused its discretion.
See People v. Torres, 224 P.3d 268, 273 (Colo. App. 2009) (deferring
to trial court’s finding that a juror’s failure to provide responsive
information on a jury questionnaire was inadvertent after hearing
juror’s explanation).
4. Prejudicial Effect
¶ 23 Fourth, D.E. argues that Juror N’s late disclosure is
presumptively prejudicial because it deprived him “of the ability to
make a valid challenge for cause or peremptory challenge.” But as
to the causal challenge, the court and counsel questioned Juror N
about her ability to be fair and unbiased before the presentation of
evidence. The court found credible Juror N’s representation that
“she can be a fair and very unbiased juror in this case.” And the
record does not show that Juror N “evinc[ed] enmity or bias toward
11
the defendant or the state.” § 16-10-103(1)(j), C.R.S. 2019; see
People v. Young, 16 P.3d 821, 824 (Colo. 2001) (in reviewing denial
of causal challenge, appellate courts defer to trial court’s
assessment of a prospective juror’s credibility; and recognizing trial
court’s ability to evaluate a juror’s demeanor and body language).
Therefore, to the extent D.E. contends the late disclosure rendered
Juror N actually biased, we have no basis to presume prejudice
where the juvenile court found that Juror N could be fair and
unbiased. See Young, 16 P.3d at 824. Compare People v. Novotny,
2014 CO 18, ¶¶ 2, 27 (requiring a defendant to show prejudice to
obtain reversal based on a trial court’s erroneous denial of causal
challenge), with People v. Maestas, 2014 COA 139M, ¶¶ 19-20
(reversing where court’s erroneous denial of causal challenge
resulted in a biased juror serving on the jury, and “nothing in the
record of voir dire suggest[ed] that she was willing to set aside her
personal biases and decide the case based on the law and the
evidence presented at trial”).
¶ 24 We turn next to D.E.’s contention that had Juror N not
withheld the information about her daughter, he would have
excused Juror N with a peremptory challenge (assuming he could
12
not strike her for cause). To be sure, the record shows that D.E.
exercised all of his peremptory challenges, using two to excuse
potential jurors who had disclosed some experiences related to
sexual assault. But even if we assume Juror N intentionally
withheld the information and that D.E. would have used a
peremptory challenge to excuse her (as he asserts he would have),
we still can’t presume prejudice. Before Novotny, we may have
viewed the issue differently. But in that case, the Colorado
Supreme Court departed from earlier decisions requiring automatic
reversal where a defendant was “forced” to use a peremptory
challenge to remedy a trial court’s mistaken denial of a challenge for
cause. Novotny, ¶¶ 2, 14, 27. In doing so, it concluded that
“allowing a defendant fewer peremptory challenges than authorized”
doesn’t, in and of itself, require reversal. Id. at ¶ 27.
¶ 25 And in Vigil v. People, 2019 CO 105, the supreme court settled
any doubt about whether a defendant could claim prejudice from
the denial of the right to exercise a peremptory challenge. More
specifically, the Vigil court held that “because neither the
prosecution nor the defendant is granted any right in this
jurisdiction, by constitution, statute, or rule, to shape the
13
composition of the jury through the use of peremptory challenges,
the defendant could not have been harmed by the deprivation of
any such right.” Id. at ¶ 25.
¶ 26 Thus, to the extent pre-Vigil cases (like Christopher, Dunoyair,
Borrelli, or People v. Rael, 40 Colo. App. 374, 578 P.2d 1067 (1978))
can be read to require reversal for the denial of the right to exercise
a peremptory challenge alone, we conclude Novotny and Vigil
implicitly overruled them. For that reason, even if D.E. would have
exercised a peremptory challenge to strike Juror N, that, by itself,
doesn’t establish reversible prejudice. See Vigil, ¶ 25; Novotny, ¶
27.
5. Practical Remedies
¶ 27 Fifth, as to the final Christopher factor, we agree with D.E. that
it wasn’t “outside the scope” of the juvenile court’s authority to
replace Juror N with the alternate after her disclosure. See § 16-
10-106, C.R.S. 2019. Given that the disclosure happened before
trial, replacing Juror N was a simple solution. But whether to do
that was in the court’s discretion. People v. Abbott, 690 P.2d 1263,
1268-69 (Colo. 1984). And because it found Juror N didn’t
intentionally withhold the information and could be fair and
14
unbiased, the court acted within its discretion in declining to
replace her with the alternate juror.
6. Other Contentions
¶ 28 Even putting aside the Christopher factors, we are not
persuaded by D.E.’s contention that the court reversibly erred
because the incident concerning Juror N’s daughter occurred when
her daughter was fourteen (like the victim here) and involved a
seventeen-year-old (D.E.’s age). After defense counsel raised this
similarity, Juror N responded that the incident with her daughter
“happened a long time ago and [was] very much forgotten.” And the
juvenile court — able to listen to and observe Juror N — found her
“very credible.”
¶ 29 Nor does the fact that the incident regarding Juror N’s
daughter also involved sexual assault necessarily preclude her from
sitting as a juror. See People v. Conyac, 2014 COA 8M, ¶¶ 17-19
(determining there was no abuse of discretion in sexual assault
case where court denied challenge for cause against juror whose
niece had been a victim of sexual assault where juror stated she
would follow the court’s instructions and decide the case on the
evidence); People v. Dashner, 77 P.3d 787, 789-90 (Colo. App. 2003)
15
(deciding there was no abuse of discretion where court denied
challenge for cause against juror whose son had been a victim of
the same crime charged at trial where juror stated he would follow
the court’s instructions and decide the case on the evidence).
¶ 30 We are equally unpersuaded that what happened here is like
the cases D.E. directs us to where new proceedings were required
based on a juror’s post-trial disclosure. See, e.g., English v.
Berghuis, 900 F.3d 804 (6th Cir. 2018); Allen v. Ramada Inn, Inc.,
778 P.2d 291 (Colo. App. 1989); Borrelli, 624 P.2d 900; Rael, 40
Colo. App. 374, 578 P.2d 1067. Unlike each of these cases, Juror N
did not respond untruthfully or incompletely to a direct question
during voir dire. Much to the contrary, she simply wasn’t asked
anything by counsel that would have elicited a disclosure of her
son’s or daughter’s experiences. Cf. English, 900 F.3d at 815-18
(juror didn’t disclose during trial that she had been sexually abused
as a child and later made three “partly contradictory” assertions
regarding her nondisclosure); Allen, 778 P.2d at 292 (two jurors
who were victims of rape did not respond when asked during voir
dire whether they “had been the victim of a rape”); Borrelli, 624 P.2d
at 902 (when asked directly about relationship with witness, the
16
juror failed to disclose the full scope of that relationship); Rael, 40
Colo. App. at 375-76, 578 P.2d at 1068 (despite court’s inquiry
whether anyone had been a defendant in a criminal case, the juror
failed to disclose that he had pleaded guilty to a crime).
¶ 31 And even more unlike the cases D.E. relies on, Juror N came
forward before the presentation of evidence and volunteered the
disclosure, enabling the court and counsel to directly question her.
Cf. English, 900 F.3d at 807 (after the defendant was convicted of
sexual conduct, a juror revealed “at an evidentiary hearing” that she
had been sexually abused); Allen, 778 P.2d at 292 (after verdict,
counsel “learned” two jurors had not truthfully answered the
question about being raped); Borrelli, 624 P.2d at 902 (a year after
trial and after juror died, it was “discovered” the juror had not been
truthful in voir dire); Rael, 40 Colo. App. at 375, 578 P.2d at 1068
(after trial, defense counsel “was informed” a juror hadn’t disclosed
criminal conduct).
¶ 32 Finally, although D.E. now argues that Juror N’s response to
Question 6 on the juror questionnaire was untruthful, the record is
undeveloped on this issue since no one asked her about that
question after she made her voluntary disclosure. In any event,
17
given the court’s credibility findings, and that Question 3 is more
directly on point, we can’t conclude that additional inquiry on
Question 6 would have made a difference.
7. Conclusion
¶ 33 Given all this, and because the record supports the juvenile
court’s findings that Juror N didn’t intentionally withhold the
information and could be fair and unbiased, we conclude that the
court’s decision to allow Juror N to serve on the jury was within its
discretion.
III. Evidentiary Challenges
¶ 34 D.E. next contends that the juvenile court abused its
discretion by (1) allowing the prosecution to introduce evidence of
the victim’s virginity and (2) barring his evidence that the victim
was actively seeking to lose her virginity. We perceive no reversible
error.
A. Additional Facts
¶ 35 Before trial, D.E. filed two motions in limine to exclude
evidence of the victim’s virginity. He also moved to introduce
evidence that, one month before their sexual encounter, the victim
allegedly communicated to two separate boys that she wanted to
18
have sex. He argued this evidence was admissible because it fell
outside the rape shield statute and was relevant to his consent
defense.
¶ 36 With respect to the victim’s virginity, the juvenile court agreed
with the prosecution that this evidence was relevant to the issue of
consent but found that it could be significantly prejudicial if “taken
to an extreme.” Therefore, despite the prosecution’s request to
introduce the virginity evidence through multiple witnesses, the
court limited the prosecution to statements the victim made to a
sexual assault nurse examiner. And the court also agreed that a
question posed by a detective during D.E.’s recorded interview that
referenced the victim’s virginity could be played at trial, but would
be preceded by a limiting instruction to mitigate its prejudicial
effect.
¶ 37 As to the victim’s communications with other boys, the court
prohibited this evidence, finding that (1) D.E.’s offer of proof was
insufficient to overcome the presumption of irrelevance under the
rape shield statute; (2) the relevance of this evidence was
“questionable”; and (3) the “prejudicial value” of the evidence under
CRE 403 was “significant.”
19
B. Standard of Review and Governing Law
¶ 38 We review a juvenile court’s evidentiary rulings, including
those based on the rape shield statute, for an abuse of discretion.
People v. Melillo, 25 P.3d 769, 772 (Colo. 2001). A court abuses its
discretion if its ruling is manifestly arbitrary, unreasonable, or
unfair, or based on an erroneous view of the law. People v. Sims,
2019 COA 66, ¶ 44.
¶ 39 The rape shield statute creates a presumption that evidence
relating to a victim’s prior “sexual conduct” is irrelevant. People v.
Williamson, 249 P.3d 801, 802 (Colo. 2011); see § 18-3-407(1),
C.R.S. 2019. The statute does not, however, “specifically prohibit
the victim from testifying as to the lack of prior sexual activity.”
People v. Johnson, 671 P.2d 1017, 1020 (Colo. App. 1983).
¶ 40 The presumption of irrelevance can be rebutted if the
defendant makes an offer of proof showing the evidence is relevant
to a material issue in the case. § 18-3-407(2); Melillo, 25 P.3d at
774. But even then, the admissibility of such evidence remains
subject to the usual evidentiary rules. Fletcher v. People, 179 P.3d
969, 973 (Colo. 2007).
20
¶ 41 Where a defendant preserves his evidentiary challenges, and
evidence was erroneously admitted, we will reverse unless the error
was harmless. People v. Stewart, 55 P.3d 107, 124 (Colo. 2002).
An error is harmless when “there is not a reasonable probability
that it contributed to the defendant’s conviction.” Mata-Medina v.
People, 71 P.3d 973, 980 (Colo. 2003); see Crim. P. 52(a).
C. Evidence of Victim’s Virginity
¶ 42 D.E. argues that it was reversible error for the court to allow
evidence of the victim’s virginity because such evidence was
irrelevant, inadmissible to disprove consent under the rape shield
statute, and impermissible character evidence under CRE 404.
Under the circumstances here, however, we need not determine if
virginity evidence is ever admissible to disprove consent. This is so
because, even assuming the juvenile court erred by admitting this
evidence, any error was harmless.
¶ 43 The victim didn’t testify about her virginity, nor did any of her
friends or family members. Instead, evidence of the victim’s
virginity was referenced at trial in two ways. First, the prosecutor
asked the nurse who performed the sexual assault examination a
series of questions about her exam notes. The nurse confirmed the
21
notes stated “never” in response to a question on the form asking
when the victim’s last sexual activity was. The prosecutor then
moved to the next question and asked nothing else about the
reported response or the subject.
¶ 44 Second, the jury heard an audio recording of a detective
interviewing D.E. During the first part of the interview, D.E. denied
he was with the victim or that he had sex with her. Later, he
admitted they did have sex, but told the detective it was
consensual. After D.E. changed directions, the detective asked:
“You’re telling me that, a girl, a 14 year old girl who’s never had sex
before, chooses to lose her virginity like this?” But, before the jury
heard that question, the juvenile court gave the following
instruction:
I’ve interrupted this [audio] at this point to
instruct you that the question you are about to
hear from [the detective] is being presented for
the purpose of placing D.E.’s response to the
question in context only. You may not
consider [the detective’s] question for any other
purpose.
And during closing argument, before the prosecutor replayed this
portion of the interview, the court again gave this limiting
instruction. D.E. doesn’t challenge the adequacy of the limiting
22
instruction and, in fact, proposed the language that the court
ultimately used. Nor does D.E. challenge the admissibility of the
interview or contend that the interview would have made sense to
the jury in the absence of the detective’s question.
¶ 45 So, over the course of a six-day trial with twenty-three
witnesses, the jurors (1) once heard a reference to the victim’s lack
of sexual history as reported in the nurse’s exam notes; and (2)
twice heard the detective’s question referencing the victim’s
virginity, preceded each time by the instruction that they were to
view it only as a question. Other than that, nothing else was said
on the topic. And the prosecutor never expressly referenced it in
either opening statement or closing argument.
¶ 46 Nor do we see anything in the record that suggests the
prosecutor affirmatively used the evidence to either rebut D.E.’s
consent defense or argue that D.E. “deflowered” the victim to “evoke
[the] jurors’ sympathy and moral judgment.” Fletcher, 179 P.3d at
975.
¶ 47 Indeed, the jury acquitted D.E. of the counts involving a
deadly weapon, so it ultimately didn’t credit the victim’s account
entirely. This shows the jurors were able to parse through the
23
evidence and weren’t improperly swayed by the few references to the
victim’s sexual inexperience. See Martin v. People, 738 P.2d 789,
795-96 (Colo. 1987) (although not conclusive, a split verdict
indicates that prejudice did not affect the jury’s verdict).
¶ 48 Given these circumstances, the single reference to the exam
notes, and the appropriate limiting instruction preceding the
detective’s question, we conclude any error in the admission of the
virginity evidence was harmless. See Fletcher, 179 P.3d at 976
(finding two references to the victim’s lack of sexual experience
during testimony and one indirect reference during closing were
harmless); see also People v. Jimenez, 217 P.3d 841, 865 (Colo.
App. 2008) (“Under the circumstances, these brief, isolated
statements, even if erroneously admitted, did not affect defendant's
substantial rights.”).
D. Evidence That Victim Was Seeking To Lose Her Virginity
¶ 49 D.E. also argues that, given the evidence of the victim’s
virginity, the court erred by disallowing evidence that the victim was
allegedly actively seeking to lose her virginity. D.E. specifically
contends the evidence wasn’t prohibited by the rape shield statute
and was relevant to his consent defense. We are unpersuaded.
24
¶ 50 We initially reject D.E.’s argument that, because the rape
shield statute only applies to “sexual conduct” and not statements,
this evidence necessarily falls outside the statute.
¶ 51 The basic purpose of the rape shield statute is to provide
sexual assault victims protection from humiliating public “fishing
expeditions” into their sexual histories, unless the proponent of the
evidence makes a preliminary showing that such evidence will be
relevant to some issue in the pending case. People v. MacLeod, 176
P.3d 75, 79 (Colo. 2008). The statute doesn’t preclude the
admission of all sexual history evidence at trial; rather, it strikes a
balance between the defendant’s rights and the victim’s privacy
interest. Id.; see also People v. Harris, 43 P.3d 221, 226 (Colo.
2002).
¶ 52 To that end, the term “sexual conduct” as used in the statute
encompasses “a broad range of behaviors related, but not limited, to
sexual contact and intercourse.” Williamson, 249 P.3d at 803-04
(concluding that solicitation of prostitution constitutes “sexual
conduct” under the statute).
¶ 53 We see no abuse of the juvenile court’s discretion in finding
that D.E.’s offer of proof didn’t overcome the presumption that the
25
evidence of the victim allegedly trying to lose her virginity was
prohibited by the rape shield statute. § 18-3-407(2); Melillo, 25
P.3d at 774.
¶ 54 But even if we concluded the offer of proof was sufficient, we
also agree with the juvenile court’s concern about the evidence’s
relevance. Absent the impermissible inference drawn from those
communications, whether she was interested in having sex with
other boys sheds “no relevant light on the issue whether she did or
did not consent to sexual contact with [D.E.]” People v. Braley, 879
P.2d 410, 416 (Colo. App. 1993); see People in Interest of K.N., 977
P.2d 868, 876 (Colo. 1999) (victim’s sexual history didn’t make it
more probable that she consented to the sexual encounter with the
defendant).
¶ 55 And we again agree with the juvenile court that the prejudicial
effect of the evidence substantially outweighs any minimal
relevance. See CRE 403; see Melillo, 25 P.3d at 777 (rape shield
statute protects victims from “the unnecessary invasion of privacy
and emotional abuse”).
¶ 56 Finally, we reject D.E.’s assertion that this presents a
constitutional confrontation issue. “Not every evidentiary ruling
26
that affects a defendant’s ability to challenge the credibility of the
evidence against him amounts to a constitutional error.” Conyac,
¶ 108. It is only if the juvenile court’s ruling effectively bars the
defendant from meaningfully testing evidence central to
establishing his guilt that the error is of constitutional magnitude.
Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009). Excluding
the victim’s communications with the other boys didn’t deprive D.E.
of his only means to test significant prosecution evidence or
impeach the victim’s credibility. Indeed, D.E. did so through
extensive cross-examination and by presenting his own character
and expert witnesses. Nor did it prevent D.E. from arguing his
consent defense, which he advanced in opening statement and
closing argument.
¶ 57 We therefore conclude that the juvenile court did not err by
excluding evidence that the victim was allegedly seeking to lose her
virginity.
IV. Bolstering Testimony
¶ 58 D.E.’s final contention is that the juvenile court erred by
allowing two expert witnesses to improperly bolster the victim’s
credibility. We again perceive no reversible error.
27
A. Additional Facts
¶ 59 The prosecution called Dr. Sheri Vanino to testify as a blind
expert in the field of sexual offense dynamics. Dr. Vanino testified
generally on direct examination about certain “rape myths” and
“misinformation about the topic of sexual assault.” When the
prosecutor asked her about victims fabricating rape allegations for
revenge or attention, she responded:
Sure. So again, another huge myth. So the
general public, even in the media you see it all
the time where there’s insinuations that
women cry rape all the time or teenagers cry
rape or children say they’re — you know, lie
and say they’re being sexually abused when
they’re not. Well we know from the research
that that’s not accurate at all. It’s very rare for
people to —.
Before she finished her statement, defense counsel objected and
asked to approach the bench. After an inaudible bench conference,
the examination resumed and the prosecutor moved to a different
topic. The transcript doesn’t indicate whether the defense’s
objection was overruled or sustained.
¶ 60 As already noted, the nurse who examined the victim also
testified as an expert at trial. While reviewing the nurse’s exam
notes, the prosecutor asked her what she meant when she wrote
28
that the victim had “appropriate affect.” The nurse began to answer
and the following exchange occurred:
[Nurse]: She was acting appropriately —
[Defense Counsel]: Objection. Objection.
[Nurse]: — the way that I have seen other
young girls act in —
[Prosecutor]: (Indiscernible.)
[Nurse]: — a similar situation.
[The Court]: All right. Just a minute. What’s
your objection[?]
[Defense Counsel]: I’m sorry, Judge. I’m going
to object to her testifying about how other
people react, especially based on these small
sample sizes. We can approach if the Court
needs it for the record.
[The Court]: I’ll allow her to testify as to her
observations of this patient.
[Prosecutor]: Okay. Thank you.
The prosecutor then reiterated the court’s guidance to the nurse
and again asked her what she meant by “appropriate affect?”
Without any objection, the nurse answered: “Based on the
circumstances and what had just happened to her, it was
appropriate for the situation.”
29
B. Standard of Review and Governing Law
¶ 61 We review a ruling on the admissibility of expert testimony for
an abuse of discretion. Kutzly v. People, 2019 CO 55, ¶ 8. A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misconstrues the law. People v.
Salas, 2017 COA 63, ¶ 30. And, if it does, we reverse only if the
improper expert testimony substantially influenced the verdict or
affected the fairness of the proceedings. Stewart, 55 P.3d at 124.
¶ 62 A witness may not testify that another witness told the truth
on a specific occasion. Venalonzo v. People, 2017 CO 9, ¶ 32;
People v. Bridges, 2014 COA 65, ¶ 11. This rule applies with equal
force to direct and indirect implications of a child’s truthfulness.
Venalonzo, ¶ 32.
¶ 63 Thus, a witness may not testify that a child reporting sexual
assault was “sincere,” People v. Eppens, 979 P.2d 14, 17 (Colo.
1999), “very believable,” People v. Gaffney, 769 P.2d 1081, 1088
(Colo. 1989), “very credible,” People v. Cook, 197 P.3d 269, 275-76
(Colo. App. 2008), or not “coached or guided,” Bridges, ¶¶ 13, 16. A
witness likewise may not testify that she “personally believed” the
victim, People v. Oliver, 745 P.2d 222, 225 (Colo. 1987), or that
30
children tend not to fabricate stories of sexual abuse, People v.
Snook, 745 P.2d 647, 649 (Colo. 1987). See also People v. Marx,
2019 COA 138, ¶ 19 (finding testimony about percentage of
teenagers who fabricate sexual assault allegations was improper
bolstering). That is, testimony that the victim’s allegations are
truthful is improper.
C. Discussion
¶ 64 We need not decide whether the court erred by admitting the
above testimony because, even assuming it did, any error was
harmless, for three reasons.
¶ 65 First, it isn’t clear from the record whether defense counsel’s
objections to the testimony were overruled. To the contrary, the
transcripts suggest that the objections were effectively sustained
given that, after each objection, the prosecutor either changed the
topic or rephrased her question in line with the court’s instruction.
See People v. Hogan, 114 P.3d 42, 55-56 (Colo. App. 2004) (deciding
that there was no reversible error where court sustained objections
to four different lines of questioning and instructed the jury to
disregard one line of questioning). Indeed, as the People note, D.E.
didn’t raise any issue regarding the manner in which the court
31
handled either objection. People v. McKnight, 39 Colo. App. 280,
284, 567 P.2d 811, 814 (1977) (determining reversible error did not
occur where defense counsel, after a sustained objection, requested
neither a mistrial nor a cautionary instruction).
¶ 66 Second, leaving aside whether the objections were sustained,
Dr. Vanino told the jury that her testimony didn’t relate to “the
issue of consent.” The nurse also testified that she couldn’t say
whether the injuries she observed were more likely consistent with
consensual or nonconsensual sex. So both experts disclaimed an
opinion on the only material issue — whether the sex was or wasn’t
consensual.
¶ 67 Third, the jury heard from the victim and had a chance to
directly assess her credibility. See Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986). In doing so, it did not entirely credit her version
of events. And the jury likewise heard D.E.’s interview in which he
eventually claimed the sex was consensual. So the jury was able to
weigh D.E.’s account against the victim’s.
¶ 68 Under these circumstances, even if we assume the court didn’t
sustain defendant’s objections and that the experts’ testimony
constituted improper vouching, we can’t conclude the brief
32
references substantially influenced the verdict or affected the
fairness of the proceedings.
V. Conclusion
¶ 69 We affirm the adjudication.
JUDGE RICHMAN and JUDGE YUN concur.
33