People v. Collins, Court of Appeals No. 16CA2170

Docket NºCourt of Appeals No. 16CA2170
Citation491 P.3d 438
Case DateFebruary 18, 2021
CourtCourt of Appeals of Colorado

491 P.3d 438

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Cory Rex COLLINS, Defendant-Appellant.

Court of Appeals No. 16CA2170

Colorado Court of Appeals, Division V.

Announced February 18, 2021

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


¶ 1 We must determine whether the trial court violated defendant Cory Collins's confrontation rights when it allowed the child victim to have a court facility dog at her feet while she testified during trial.

¶ 2 At the time of the prosecution's motion requesting a court facility dog, there was no statutory guidance. But in 2019, the General Assembly enacted a statute authorizing the use of court facility dogs. We know of no Colorado case, however, that has analyzed the defendant's argument here — that the presence of the court facility dog violated his confrontation rights.

¶ 3 Because we conclude that Collins's right to confrontation doesn't carry with it right to impose discomfort on an accusing witness, and because the trial court's findings that all confrontation requirements were met have record support, we reject Collins's confrontation claim. Because we also conclude that the other evidentiary issues that Collins raises on appeal don't warrant reversal, we affirm the convictions. But, because of a clerical error in the mittimus, we remand the

491 P.3d 442

case for the limited purpose of correcting the mittimus.

I. Background

¶ 4 Between January 2013 and November 2014, Collins sexually abused T.M.1 At the time of the assaults, Collins was in a romantic relationship with T.M.’s mother and lived with her and T.M. T.M. was between the ages of three and five years old at the time of the abuse. At the time, T.M.’s mother had unstable housing and was using drugs.

¶ 5 In September 2013, the Department of Human Services (the Department) contacted T.M.’s biological father, expressing concern about T.M.’s living situation with her mother. T.M.’s father sought an emergency protective order to take temporary custody of her. Shortly thereafter, she began living with her father, his wife (T.M.’s step-mother), and their three children. Eventually, T.M.’s mother's parental rights were terminated and T.M. remained in her father's custody.

¶ 6 Soon after T.M. moved into her father's house, her father and step-mother began to suspect that she'd been sexually abused when she lived with her mother. T.M. had problems urinating and didn't understand the concept of privacy between family members. T.M. told her father that she'd "played the S game"2 (or "sex game") with someone named "Andy."

¶ 7 Her father reported T.M.’s disclosure of playing the "S game" to police. A forensic interviewer questioned T.M. about this in October 2013. T.M. didn't repeat the disclosure regarding the "S game" to the interviewer. Because T.M. didn't disclose any abuse, police didn't conduct an additional investigation at that time.

¶ 8 In the spring of 2014, T.M. took off her clothes and got into bed with her step-brother, who was also a child. Her father and step-mother questioned T.M. about this behavior and she referred to it as the "S game." T.M. went on to say that she had "played the S game" with Collins. When questioned further by her father and step-mother, T.M. disclosed that Collins had touched her inappropriately. T.M. also told them that she didn't like Collins, describing him as "gross" and "not safe." Her father and stepmother reported these disclosures to the Department. But after an initial investigation, the Department concluded that the allegations against Collins were unfounded.

¶ 9 Soon after, T.M. started seeing a counselor. T.M. told her counselor that Collins had "touched her privates." Her counselor, in turn, reported this to the Department.

¶ 10 In November 2014, a police detective interviewed T.M. T.M. told the detective that Collins had touched her inappropriately and was able to draw a picture of his genitals. When asked if she had been touched by anyone other than Collins, she said no. Based on this information, police arrested Collins.

¶ 11 Collins was charged with two counts of sexual assault on a child under age fifteen by one in a position of trust and as a pattern of abuse; one count of sexual assault on a child as a pattern of abuse; and one count of sexual assault on a child as a pattern of abuse.

¶ 12 There were two jury trials. The first ended in a mistrial. T.M. testified at both trials. Collins didn't testify. His theory of defense was that although he never touched T.M. inappropriately, T.M. had been sexually abused by "Andy," a friend of T.M.’s mother who, Collins argued, was a known sex offender. Collins contended that T.M. was coerced by her mother to accuse him — and not Andy — of touching her inappropriately because her mother was angry with him. Collins also argued that T.M.’s parents’ and therapist's repeated questioning about Collins subtly influenced T.M. to name him, instead of Andy, as the person who had touched her inappropriately.

¶ 13 The jury found Collins guilty of sexual assault on a child and sexual assault on a child by one in a position of trust (with an

491 P.3d 443

additional finding that T.M. was a protected person because of her age).3 Collins was sentenced to an indeterminate concurrent sentence of four years to life in the custody of the Department of Corrections.

II. Analysis

¶ 14 On appeal, Collins raises four issues. First, Collins contends that the trial court abused its discretion by allowing T.M. to testify, arguing that she was incompetent due to her age. Second, Collins contends that the trial court deprived him of his federal and state constitutional right to confrontation by allowing a court facility dog (also commonly referred to as a comfort or support dog) to sit at T.M.’s feet while she testified. Third, Collins contends that the trial court erred by permitting the prosecutor to ask its expert witness certain questions that called for the witness to improperly bolster T.M.’s testimony. And fourth, Collins contends that the mittimus must be amended to reflect that the pattern of abuse sentence enhancer was dismissed.

¶ 15 We address each issue below and conclude that (1) the court didn't abuse its discretion by allowing T.M. to testify; (2) the court didn't violate Collins's confrontation rights by allowing a court facility dog to sit at T.M.’s feet while she testified; (3) although the trial court erred by permitting a prosecution expert to answer certain questions, the error was harmless; and (4) the case must be remanded to correct the mittimus.

A. T.M.’s Competency to Testify

¶ 16 First, Collins argues that the trial court abused its discretion in two regards when it found T.M. competent to testify. First, he contends that the trial court erred when it considered previously recorded forensic interviews of T.M. while assessing T.M.’s competence to testify. And second, Collins contends that the trial court's factual findings regarding T.M.’s competence aren't supported by the record and its legal conclusion isn't based on the correct legal standard. We aren't persuaded.

1. Legal Principles

¶ 17 Subject to certain exceptions, all persons are competent to be witnesses. See § 13-90-101, C.R.S. 2020; CRE 601. But children under ten years of age who appear incapable of "receiving just impressions" or of relating them truthfully aren't legally competent and may not be called as witnesses. § 13-90-106(1)(a), (b)(I), C.R.S. 2020. A child under ten years of age may testify, however, if "the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined." § 13-90-106(1)(b)(II).

¶ 18 A trial court "has broad discretion in determining how a competency hearing will be held." People v. Dist. Ct., 776 P.2d 1083, 1087 n.4 (Colo. 1989) (citation omitted) (indicating that a competency hearing may be held in the judge's chambers if it eases the child's anxiety); see also People v. Trujillo, 923 P.2d 277, 281 (Colo. App. 1996) ("the manner and scope of examination should be left to the sound discretion of the trial court").

¶ 19 We review a preserved statutory claim regarding competence of a child witness for an abuse of discretion. People v. Wittrein, 221 P.3d 1076, 1079 (Colo. 2009) ; People v. Dist. Ct. , 791 P.2d 682, 684 (Colo. 1990). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or is based on a misapplication of the law. People v. Lindsey, 2018 COA 96M, ¶ 5, 461 P.3d 553.

2. Additional Factual Background

¶ 20 Two months before the first trial, the court conducted a competency hearing for T.M., then six years old. During the hearing, T.M. answered questions posed by the court, the prosecutor, and defense counsel. She accurately stated her age and who she lives with. She told the court the names of two of her teachers and her best friend. She also corrected defense counsel when he misstated

491 P.3d 444...

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    ...the burden on the prosecution to prove the error was not plain. See id. at ¶ 82 ("[T]he People have presented no compelling arguments as 491 P.3d 438 to why any double jeopardy errors that may have been committed here did not rise to the level of plain error."). Contra Vigil , 127 P.3d at 9......

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