People v. Bowers, 89SC43

Citation801 P.2d 511
Decision Date13 November 1990
Docket NumberNo. 89SC43,89SC43
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Dwight Allen BOWERS, Respondent.
CourtSupreme Court of Colorado

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Denver, for petitioner.

Richard A. Hostetler, Sp. Deputy Public Defender, Denver, for respondent.

Justice QUINN delivered the Opinion of the Court.

We granted the People's petition for certiorari to review the court of appeals' decision in People v. Bowers, 773 P.2d 1093 (Colo.App.1988), which reversed the conviction of the defendant, Dwight Allen Bowers, for aggravated incest and sexual assault, and remanded the case to the district court for a new trial because of the erroneous admission into evidence of the unavailable child-victim's hearsay statements describing the sexual acts allegedly committed against the child. In reaching this result, the court of appeals held that the People failed to establish the necessary foundational requirements for admitting the child's hearsay statements into evidence under the residual hearsay exceptions created by CRE 803(24) and CRE 804(b)(5) and also failed to satisfy the "reliability" and "corroborative evidence" foundational requirements for admitting the statements under section 13-25-129, 6A C.R.S. (1987). We hold that the only basis for admitting the unavailable child-victim's hearsay statements is section 13-25-129 and that, although the "reliability" requirement of the statute was satisfied, the People failed to establish the statutory requirement that there be "corroborative evidence of the act which is the subject of the [child's] statement." We accordingly affirm the judgment of the court of appeals.


The defendant was charged with the class 3 felonies of aggravated incest 1 and sexual assault by one in a position of trust. 2 Both offenses were alleged to have been committed against the defendant's three-year-old daughter, whom we will refer to as K.B., between March 14 and April 16, 1985. The prosecution's case was based on statements made by K.B. to several other persons, in which K.B. described the sexual acts committed against her.

At the commencement of the trial, the district court, outside the presence of the jury, conducted a hearing for the purpose of determining the admissibility of K.B.'s hearsay statements. The prosecution offered such statements under the residual hearsay exception created by CRE 803(24) for both available and unavailable witnesses, the residual hearsay exception created by CRE 804(b)(5) for unavailable witnesses, and the statutory exception created by section 13-25-129, 6A C.R.S. (1987), for a child-victim of a sexual assault. At the outset of the hearing, the prosecution called K.B. to the witness stand. The prosecuting attorney asked K.B., who was then four and one-half years old, very basic questions, such as her name, age, and whether she could identify her parents in the courtroom. The child answered these questions but only with great reluctance and by nodding. The trial court, after observing K.B.'s behavior on the witness stand, determined that the child was not competent to testify at trial.

The prosecution then made an offer of proof with respect to the child's statements. The offer of proof closely paralleled the evidence later admitted at trial and outlined the following sequence of events. On April 16, 1985, a fifteen-year old babysitter was caring for K.B. and her younger brother. While the babysitter was changing the younger brother's diaper, K.B. spontaneously pointed to the brother's penis and said her father "had one just like that but it was bigger and he hurts me with it." The babysitter asked K.B. where her father had hurt her, and the child pointed to her vaginal area and said that it happened in the tub and in the car when she was naughty. The babysitter reported this incident to the babysitter's mother, who then questioned K.B. and received similar responses from the child.

The babysitter's mother took K.B. to the local police station where the child was interviewed by a police detective experienced in the investigation of sexual assaults on children. The detective reviewed with the child the body parts of male and female anatomical dolls. The male doll had a penis and the female doll had breasts and a vagina. The child referred to the penis of the male doll as "boney." When K.B. identified the penis of the male doll during the course of the interview, she made a statement to the effect that her father "had one too" but that "his was bigger" and that "she was hurt down there," pointing to her vaginal area. When the detective asked K.B. how her father had hurt her, K.B. demonstrated with the dolls by placing the male doll on top of the female doll and putting the penis of the male doll on the vaginal area of the female doll. K.B. also stated that the defendant "peed" on her, and then, gesturing by pointing to her mouth, stated, "Dwight [the defendant] put his boney." K.B. told the detective that these events occurred at the defendant's house. 3 The next day, K.B. was taken to a county health department office, where she was examined by a pediatric nurse. The nurse found no soreness or irritation in the vaginal area.

Subsequently, a foster care program coordinator for the county department of social services drove K.B. and her younger brother to a foster care home. During the offer of proof, the prosecuting attorney did not describe in detail the contents of the foster care program coordinator's testimony, but rather referred to the contents of the coordinator's statement that previously had been disclosed to defense counsel. According to the coordinator's statement, as they drove to the foster home, K.B. spontaneously said, "I don't like boneys." When the coordinator asked K.B., "What are boneys?", K.B. responded: "You know, I don't like boneys. I don't like Daddy to put his boney on me. Daddy puts his boney on me."

During the next year K.B. went to regular weekly therapy sessions with a family therapist or counselor, who had a Master's Degree in Social Work and counseled persons on a variety of family problems, at a county mental health center. As in the case of the coordinator's testimony, the prosecuting attorney, during the offer of proof, referred to the contents of the counselor's statement that previously had been disclosed to defense counsel. The counselor used a play therapy room in which anatomical dolls depicting male and female sexual organs were available to K.B. After about a month of counseling, K.B. said to the counselor that "Daddy hurt me down there" and pointed to her vagina. The counselor and K.B. undressed the anatomical dolls, and the counselor asked K.B. to describe what happened by using the dolls. K.B. put the male and female dolls together and said it hurt and made her cry, and that she wanted to throw her father in the snow for being naughty. The counseling sessions continued for a year and, according to the counselor, K.B. mentioned the sexual assault approximately fifteen times during this period. At one of the counseling sessions K.B. gestured by putting her finger in her mouth in order to indicate that the defendant had put his penis in her mouth during one of the incidents.

After considering the prosecution's offer of proof and the arguments of counsel, the trial court overruled the defendant's objection to the child's statements and ruled them admissible under CRE 803(24) and CRE 804(b)(5). The court also ruled that the child's statements satisfied the admissibility standards of section 13-25-129 because, as stated by the court, "the time, content, and circumstances of the statements provided sufficient safeguards of reliability" and there was corroborative evidence of the act which the child described by reason of the child's use of anatomical dolls and gestures describing the sexual offense to the other persons.

The prosecution's evidence at trial consisted essentially of the evidence summarized in its offer of proof. The defendant testified on his own behalf and denied that he ever sexually assaulted K.B. The jury found the defendant guilty of both charges, and the court imposed concurrent terms of four years on each count.

On appeal, the court of appeals reversed the conviction and remanded for a new trial. In the court of appeals' view, the trial court erred in several particulars: first, in determining that the child's hearsay statements satisfied the circumstantial guarantees of trustworthiness required by CRE 803(24) and CRE 804(b)(5); second, in failing to specify the reason for finding that K.B. was not competent to testify as a witness; third, by failing to identify the specific factors which rendered the child's statement reliable for purposes of section 13-25-129(1)(a); and fourth, by ruling that the child's use of anatomical dolls and gestures satisfied the requirement of section 13-25-129(1)(b)(II) that there be "corroborative evidence of the act which is the subject of the statement." We granted the People's petition to review the propriety of the court of appeals' resolution of this case.


Prior to addressing the admissibility of the child's statements, we address two preliminary issues which are closely tied to the principal questions before us. Both of these matters relate to the meaning and scope of section 13-25-129, which states, in pertinent part, as follows:

(1) An out-of-court statement made by a child, as child is defined under the statutes which are the subject of the action, describing any act of sexual contact, intrusion, or penetration, as defined in section 18-3-401, C.R.S., performed with, by, on, or in the presence of the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in any...

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  • Jones v. State, 1988
    • United States
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    ...constitutional amendment on other grounds as recognized by State v. Smith, 684 N.E.2d 668, 683 n.4 (Ohio 1997); see also People v. Bowers, 801 P.2d 511, 524 (Colo. 1990) (allowing corroboration by another accomplice for purposes of avoiding jury instruction on uncorroborated accomplice test......
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  • "She said what?": what to do in civil domestic violence proceedings with child hearsay.
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