People v. Cernazanu

Decision Date10 September 2015
Docket NumberCourt of Appeals No. 12CA0574
Citation410 P.3d 603
Parties The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Travis Michael CERNAZANU, Defendant–Appellant.
CourtColorado Court of Appeals

Cynthia H. Coffman, Attorney General, Victoria M. Cisneros, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for DefendantAppellant.

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 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 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 to you in a situation where then you later found out that she lied?
C.D.: Yes.
THE PROSECUTOR: Okay. Typically, does she lie about big things or little things?
C.D.: The only thing she's ever lied about is money.
THE PROSECUTOR: Okay. And when she—when J.K. lies, what is her demeanor?
C.D.: She's usually really quick on giving an answer. She hasn't told a lie that I'm aware of, in a while. But in the past when she has told a lie, she's usually really quick and within a few minutes, she's like, okay, well, yeah, I wasn't being honest. She's very quick at retracting and telling the truth.
THE PROSECUTOR: She's quick in coming clean?
C.D.: Yes.
THE PROSECUTOR: Okay. And that's typically what's happened in the past when she's lied to you about things?
C.D.: Yes.
THE PROSECUTOR: Okay. You described her demeanor in this particular instance as being withdrawn, very unwilling to talk?
C.D.: Yes.
THE PROSECUTOR: Okay. Did she ever retract what she told you?
C.D.: No, she hasn't.

¶ 16 Defendant asserts, and we agree, that this testimony "unmistakably conveyed" C.D.'s belief that J.K. was telling the truth when she reported the sexual assaults to her mother. Testifying that J.K. did not engage in her typical "lying" behavior on that occasion (specifically, not promptly recanting) necessarily implied C.D.'s opinion that J.K. was not lying and, thus, that she was telling the truth on that occasion.

¶ 17 The People attempt to salvage the prosecutor's line of questioning by pointing out that (1) he never explicitly asked C.D. to confirm that she thought J.K. was truthful on that occasion and (2) C.D.'s testimony fell within the line of cases upholding the use of general characteristics as an indirect way of addressing J.K.'s credibility. We are not persuaded.

¶ 18 In the first instance, the prosecutor did everything but ask for a direct opinion that J.K. was being truthful when she disclosed the allegations. His questions, and the answers thereto, left no one in doubt that the prosecutor was telegraphing to the jury that C.D. believed J.K. was truthful about what she said on that occasion.

¶ 19 C.D. did not need to literally say that she believed J.K. to be truthful—that was the clear implication of her testimony. See Eppens, 979 P.2d at 17 (witness testified child was "sincere"); Gaffney, 769 P.2d at 1088 (witness testified child was "very believable"); Snook, 745 P.2d at 649 (witness testified that children generally tend not to fabricate stories of sexual assault); Bridges, ¶ 13 (witness testified a child was not "coached").

¶ 20 In the second instance, the cases upon which the People rely do not stand for the proposition that testimony of general characteristics of any type is admissible to attack or support a witness's credibility. Those cases deal with the admissibility of general characteristics evidence which (1) relates to an issue apart from credibility and (2) only incidentally tends to corroborate a witness's testimony. See, e.g., People v. Koon, 724 P.2d 1367, 1369–70 (Colo. App. 1986) (Evidence comparing a child's behavior to the behavioral characteristics of a child incest victim "may incidentally give rise to an inference that a victim is or is not telling the truth about the specific incident. However, this fact alone is insufficient to deny admission of the evidence, because expert testimony generally tends to bolster or attack the credibility of another witness." (emphasis added) (citation omitted)).

¶ 21 Here, unlike in the...

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