People v. Cernazanu, Court of Appeals No. 12CA0574

Docket NºCourt of Appeals No. 12CA0574
Citation410 P.3d 603
Case DateSeptember 10, 2015
CourtCourt of Appeals of Colorado

410 P.3d 603

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Travis Michael CERNAZANU, Defendant–Appellant.

Court of Appeals No. 12CA0574

Colorado Court of Appeals, Div. III.

Announced September 10, 2015


Cynthia H. Coffman, Attorney General, Victoria M. Cisneros, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE DAILEY

¶ 1 Defendant, Travis Michael Cernazanu, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child (three counts) and sexual assault on a child (pattern of abuse). We reverse and remand for a new trial.

I. Background

¶ 2 For a number of years, defendant lived, at two different locations, with his female cousin and her young daughter, I.W. I.W. was friends with J.K. and J.K.'s sister. The two sisters would come to I.W.'s house for occasional sleepovers. According to I.W. and J.K., defendant sometimes slept on the floor with them. According to J.K., when she was between the ages of six and eight years old, defendant, on numerous occasions while she was sleeping, would put his hands down her underwear and stick his finger in her vagina.1

¶ 3 J.K. eventually reported these incidents to her older sister, who confronted defendant and his cousin about them. When

410 P.3d 605

defendant and his cousin told J.K.'s mother, C.D., to talk to J.K. and tell her to stop telling lies about defendant, C.D. asked J.K. what had happened. J.K. told C.D. about the assaults, which C.D. reported to the police.

¶ 4 During the ensuing investigation, I.W. disclosed that, when she was eight years old, defendant slept next to her on the floor one night, pulled down her pajama bottoms, reached under her underwear, and touched her vagina.

¶ 5 With respect to J.K., the People charged defendant with two counts of sexual assault on a child and sexual assault on a child—(pattern of abuse). With respect to I.W., the People charged defendant with sexual assault on a child.

¶ 6 C.D., twelve-year-old I.W., nine-year-old J.K., and J.K.'s thirteen-year-old sister testified at trial. The prosecutor introduced videotapes of forensic interviews of I.W. and J.K. in which they recounted specific instances of abuse. The detective who conducted those interviews and who had interviewed defendant also testified.

¶ 7 Defendant testified that he had never slept with the girls at the first location. He admitted to sleeping next to J.K. ten times at the second house, but said that some of those times he was sleeping in a loveseat or recliner while J.K. was on the floor. He denied having any sexual contact with either of the girls.

¶ 8 Defendant also presented testimony from his cousin, who related that she had never seen defendant act inappropriately with the girls, that J.K. had previously lied to her, and that J.K. had told her she made up the allegations against defendant "to fit in with her dad's girlfriend's daughters."

¶ 9 The jury convicted defendant as charged, and the trial court sentenced him to an aggregate, indeterminate term of twenty-six years to life in the custody of the Department of Corrections.

II. J.K.'s Truthfulness

¶ 10 Defendant contends that the trial court erred in permitting C.D. to essentially testify that her daughter, J.K., was not lying when J.K. first reported that defendant had sexually assaulted her. We agree.

¶ 11 A witness may not opine with respect to whether another person was telling the truth on a specific occasion. CRE 608(a) ; People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) ; see People v. Bridges, 2014 COA 65, ¶ 11, 221 P.3d 1076 (The jury is not allowed to consider "evidence that a witness was telling the truth on a specific occasion because it is solely the jury's responsibility to determine whether a particular witness's testimony or statement is truthful."). Consistent with these principles, a witness may not testify that, in reporting a sexual assault, a child was "sincere," People v. Eppens, 979 P.2d 14, 17 (Colo. 1999), "very believable," People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989), or "not ... coached," Bridges, ¶ 16. Nor may a witness testify that he or she personally believed the child's statements, People v. Oliver, 745 P.2d 222, 225 (Colo. 1987), or that children tend not to fabricate stories of sexual abuse, People v. Snook, 745 P.2d 647, 649 (Colo. 1987).

¶ 12 Thus, "it is clear that [witnesses] may not offer their direct opinion on a child victim's truthfulness or their opinion on whether children tend to fabricate sexual abuse allegations." Wittrein, 221 P.3d at 1081.

¶ 13 It has, however, been held that an opinion bearing on the credibility of a victim is admissible if that testimony relates to general characteristics only. People v. Marsh, 396 P.3d 1, 2011 WL 6425492 (Colo. App. No. 08CA1884, Dec. 22, 2011) (cert. granted in part Jan. 22, 2013); see People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011) ("[E]xperts may testify concerning whether a victim's behavior or demeanor is consistent with the typical behavior of victims of abuse."); People v. Whitman, 205 P.3d 371, 383 (Colo. App. 2007) ("[T]estimony about children's general characteristics and their behavior is not the same as [impermissible] testimony supporting the veracity of their statements."); People v. Aldrich, 849 P.2d 821, 829 (Colo. App. 1992) ("Background data providing a relevant insight into the puzzling aspects of the child's conduct and demeanor

410 P.3d 606

which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children ...." (quoting State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984) )).

¶ 14 During a bench conference near the end of his direct examination of C.D., the prosecutor said he wanted to ask her about "when [J.K.] lies, what behavior does she exhibit, you know, what kinds of things does she lie about, those types of things." Defense counsel objected, arguing that the prosecutor was "basically asking one witness to comment on the veracity of another witness." The court ruled that, although C.D. could not comment on J.K.'s "telling the truth," she could testify as to "[g]eneral character."

¶ 15 The prosecutor then engaged in the following exchange with C.D. about J.K.'s typical behavior when she tells a lie:

THE PROSECUTOR: Has J.K. ever lied to you before?

C.D.: Yes.

THE PROSECUTOR: Okay. When J.K. lies—and has she lied
...

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9 practice notes
  • People v. Thompson, Court of Appeals No. 09CA2784
    • United States
    • Colorado Court of Appeals of Colorado
    • May 4, 2017
    ...apart from credibility and (2) only incidentally tend[ed] to corroborate a witness's testimony." People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603.F. Evidence Concerning Financial Circumstances¶ 177 Defendant asserts that the trial court erred when it admitted certain financial evidenc......
  • People v. Short, Court of Appeals No. 15CA1175
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...and (2) only incidentally tends to corroborate a witness's testimony." Relaford , ¶ 31 (quoting People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603 ). This evidence does not say whether the child was or was not lying on a specific occasion; instead, it explains why a jury should not nece......
  • People v. Alemayehu, Court of Appeals No. 17CA1745
    • United States
    • Colorado Court of Appeals of Colorado
    • May 20, 2021
    ...not opine with respect to whether another person was telling the truth on a specific occasion." People v. Cernazanu , 2015 COA 122, ¶ 11, 410 P.3d 603.¶ 92 But that rule does not appear to have been crossed in any "obvious" manner here.¶ 93 In People v. Cardman , 2016 COA 135, 452 P.3d 11, ......
  • People v. Fortson, Court of Appeals No. 15CA0413
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...concerning whether a victim’s behavior or demeanor is consistent with the typical behavior of victims of abuse." 2015 COA 122, ¶ 13, 410 P.3d 603 (quoting People v. Glasser , 293 P.3d 68, 78 (Colo. App. 2011) ).¶ 114 I find it difficult to reconcile these portions of Koon and Cernazanu with......
  • Request a trial to view additional results
9 cases
  • People v. Thompson, Court of Appeals No. 09CA2784
    • United States
    • Colorado Court of Appeals of Colorado
    • May 4, 2017
    ...apart from credibility and (2) only incidentally tend[ed] to corroborate a witness's testimony." People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603.F. Evidence Concerning Financial Circumstances¶ 177 Defendant asserts that the trial court erred when it admitted certain financial evidenc......
  • People v. Short, Court of Appeals No. 15CA1175
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...and (2) only incidentally tends to corroborate a witness's testimony." Relaford , ¶ 31 (quoting People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603 ). This evidence does not say whether the child was or was not lying on a specific occasion; instead, it explains why a jury should not nece......
  • People v. Alemayehu, Court of Appeals No. 17CA1745
    • United States
    • Colorado Court of Appeals of Colorado
    • May 20, 2021
    ...not opine with respect to whether another person was telling the truth on a specific occasion." People v. Cernazanu , 2015 COA 122, ¶ 11, 410 P.3d 603.¶ 92 But that rule does not appear to have been crossed in any "obvious" manner here.¶ 93 In People v. Cardman , 2016 COA 135, 452 P.3d 11, ......
  • People v. Fortson, Court of Appeals No. 15CA0413
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...concerning whether a victim’s behavior or demeanor is consistent with the typical behavior of victims of abuse." 2015 COA 122, ¶ 13, 410 P.3d 603 (quoting People v. Glasser , 293 P.3d 68, 78 (Colo. App. 2011) ).¶ 114 I find it difficult to reconcile these portions of Koon and Cernazanu with......
  • Request a trial to view additional results

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