People ex rel. J.R.

495 P.3d 346

2021 COA 81

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF J.R., Juvenile-Appellant.

Court of Appeals No. 17CA2076

Colorado Court of Appeals, Division II.

Announced June 10, 2021

Philip J. Weiser, Attorney General, Daniel J. De Cecco, Assistant Attorney General Fellow, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

Opinion by JUDGE HARRIS

¶ 1 After a jury trial, J.R. was adjudicated delinquent for acts against two victims that, if committed by an adult, would constitute sexual assault on a child and indecent exposure.

¶ 2 On appeal, his primary argument is that the juvenile court plainly erred by allowing a medical doctor to testify that, based on one victim's statements, she had diagnosed the victim with "sexual abuse." Although we conclude that the juvenile court erred, we also conclude that admission of the testimony did not constitute plain error warranting reversal. And because we reject J.R.’s other argument concerning prosecutorial misconduct, we affirm.

I. Background

¶ 3 The charges against J.R. arose from allegations made by A.M. and her cousin E.P. After A.M.’s parents separated, she stayed part of each week with her father (E.P.’s uncle), who lived with his girlfriend and her son, J.R. ¶ 4 In 2011, when A.M. and E.P. were both eight years old and J.R. was thirteen, A.M. told her mother that J.R. had touched her vaginal area. During a subsequent forensic interview, A.M. described sexual contact by J.R. and said that E.P. had been present when it occurred. Following the allegations, the girls were no longer permitted to stay overnight at father's home, but their parents allowed them to visit after school when father was there.

¶ 5 Four years later, during an argument in which her parents angrily confronted her about her troubling behavior, E.P. reported that J.R. had been sexually abusing her for years. In additional forensic interviews, the girls reported multiple instances of sexual abuse by J.R. The prosecution filed delinquency petitions charging J.R. with six counts of sexual assault on a child, two counts of indecent exposure, and six aggravated juvenile offender sentence enhancers.

¶ 6 Both A.M. and E.P. testified at trial, and their recorded forensic interviews were admitted into evidence. Family members described the victims’ outcries and a social worker provided context for the girls’ statements and conduct.

¶ 7 Through counsel, J.R. denied any abuse. The defense argued that the abuse would have been seen or heard by one of the adults who was always present when the girls visited father's home. The defense's theory was that A.M. had fabricated the allegations as part of her mother's plan to obtain sole custody, and that E.P. had fabricated the allegations to deflect attention from, and to avoid the consequences of, her own bad behavior.

¶ 8 The jury found J.R. guilty on all counts.

II. Expert Witness Testimony

¶ 9 J.R. contends that the juvenile court erred by admitting a medical doctor's testimony that, based only on E.P.’s consistent statements, she had diagnosed E.P. with "sexual abuse."

A. Additional Background

¶ 10 At trial, Dr. Katherine Snyder, a child abuse pediatrician, testified as an expert in the areas of pediatric medicine and child sexual assault. Her testimony focused on her examination of E.P.

¶ 11 According to Dr. Snyder, "concerns had been raised" that E.P. had been sexually abused, and Dr. Snyder was brought in to "do the medical piece of the evaluation." She testified that a sexual abuse exam and diagnosis follows the same procedure as any other medical exam and diagnosis — it includes a "head-to-toe" physical examination and a discussion with the patient and family to obtain a medical and social history.

¶ 12 In E.P.’s case, Dr. Snyder asked the victim only limited "basic questions" because E.P. had already undergone a forensic interview, and the doctor did not "want to make her go through all of those details again." Dr. Snyder testified that during the exam, E.P. reported that J.R. had penetrated her vagina with his penis, causing pain and bleeding.

¶ 13 E.P.’s physical examination was "normal," according to Dr. Snyder, with no signs of physical trauma. She explained, however, that E.P. tested positive for bacterial vaginosis, a condition typically associated with sexual intercourse but not necessarily a sign of sexual abuse.

¶ 14 The prosecutor then asked Dr. Snyder if she had made a diagnosis:

[PROSECUTOR]: So, at the conclusion of your examination with [E.P.], did you reach any sort of diagnosis?

[DR. SNYDER]: I did.

[PROSECUTOR]: Okay. What was your diagnosis?

[DR. SNYDER]: I diagnosed her with sexual abuse.

[PROSECUTOR]: Okay. Can you explain that to the jury.

[DR. SNYDER]: Yes. So, as we just talked about, we don't need physical findings, right, to diagnose sexual abuse. If you read the most up-to-date literature, technically all you need is consistent disclosure, meaning the child has told you something, and it's not just told you something, but it's really this child had told the same information to multiple people by the time she had seen me, and the information she told me was the same information she had told other individuals, including people not within her family. So, it was like in her forensic interview, like independent sources. When you have a child or even a teenager who is giving you clear detailed information and it's consistent over repeated tellings, that is very consistent with a diagnosis, and that's all you need to diagnose sexual abuse.

¶ 15 Dr. Snyder also testified briefly about A.M., who had been examined by Dr. Snyder's colleague. Dr. Snyder did not testify that she or her colleague had diagnosed A.M. with sexual abuse.

B. Standard of Review

¶ 16 A trial court has broad discretion to determine the admissibility of expert testimony under CRE 702, and we will not overturn its ruling absent a showing of an abuse of that discretion. People v. Mintz , 165 P.3d 829, 831 (Colo. App. 2007). A trial court abuses its discretion if its ruling was manifestly arbitrary, unreasonable, or unfair, or if it misconstrued or misapplied the law. See People v. Relaford , 2016 COA 99, ¶ 25, 409 P.3d 490.

¶ 17 Because defense counsel did not object to the challenged testimony, we review for plain error. Id. at ¶ 36. An error is plain, and therefore requires reversal, if it was obvious and "so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction." Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116 (citation omitted).

C. Analysis

¶ 18 J.R. contends that Dr. Snyder's testimony that she had diagnosed E.P. with sexual abuse, based solely on E.P.’s allegations, was the functional equivalent of an expert opinion that E.P. was credible. Therefore, he says, admission of the testimony violated the rules prohibiting an expert from vouching for another witness's truthfulness and from usurping the jury's role as fact finder. We agree, but we conclude that the error in admitting the testimony was not plain.

1. Admissibility of the Evidence

¶ 19 Under the Colorado Rules of Evidence, a witness may offer expert testimony if she has "scientific, technical, or other specialized knowledge" that "will assist the trier of fact to understand the evidence or to determine a fact in issue," and she is qualified as an expert based on that knowledge. CRE 702. Still, other rules and principles constrain an expert's testimony.

¶ 20 While an expert in a child sexual assault case can testify about the general characteristics and behavior of sexual abuse victims, see People v. Fasy , 829 P.2d 1314, 1318 (Colo. 1992) (expert testimony concerning post-traumatic stress disorder is admissible to explain child victims’ behaviors); Relaford , ¶¶ 28-30 (an expert may testify as to the typical demeanor and behavioral traits displayed by a sexually abused child and collecting cases), the expert may not testify — directly or indirectly — that the victim is credible or that she was telling the truth on a particular occasion, see CRE 608(a) ; Venalonzo v. People , 2017 CO 9, ¶¶ 32-33, 388 P.3d 868 ; see also People v. Snook , 745 P.2d 647, 648 (Colo. 1987) (social worker's testimony that children tend not to fabricate stories of sexual abuse was inadmissible because it was tantamount to testimony that the child victim was telling the truth in that case).

¶ 21 And while expert testimony is not objectionable merely because it embraces an ultimate issue to be decided by the jury, CRE 704 ; People v. Rector , 248 P.3d 1196, 1203 (Colo. 2011), an expert witness cannot "tell the jury what result to reach or form conclusions for the jurors that they are competent to reach on their own," People v. Baker , 2019 COA 165, ¶ 14, 487 P.3d 1194, aff'd , 2021 CO 29, 485 P.3d 1100 ; see also Venalonzo , ¶ 32 (The danger in admitting testimony that a child victim is truthful "lies in the possibility that it will improperly invade the province of the fact-finder.").

¶ 22 "The line between opinion testimony that improperly bolsters a witness's credibility and admissible testimony that may only collaterally enhance the witness's credibility is sometimes a difficult one to draw." People v. Battigalli-Ansell , 2021 COA 52M, ¶ 50. But here, we have no difficulty in concluding that Dr. Snyder's testimony crossed the line into impermissible opinion testimony that E.P.’s allegations were credible, and that sexual abuse had occurred.

¶ 23 Dr. Snyder testified that based on E.P.’s "clear," "detailed," and "consistent" allegations, she had diagnosed E.P. with "sexual abuse." The only purpose of this testimony was to bolster E.P.’s credibility. See Venalonzo , ¶ 36 (the only purpose of the expert's testimony comparing child victims’ behavior to that of other child sex assault victims was to bolster the...