People v. Cook

Decision Date16 October 2008
Docket NumberNo. 06CA0478.,06CA0478.
Citation197 P.3d 269
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Matthew COOK, Defendant-Appellant.
CourtColorado Court of Appeals

Opinion by Judge ROY.

Defendant, Steven Matthew Cook, appeals his fourteen convictions of various child-related sex offenses. We reverse and remand for a new trial.

Defendant and his wife had a daughter in September 1997. They began divorce proceedings in October 1999, and defendant moved in, and had a romantic relationship, with a neighbor who also had a daughter (girlfriend's daughter). He lived with her until early March 2004 at which time he moved back in with his ex-wife and his daughter, and then moved out again in mid-August 2004.

Defendant was charged, convicted, or acquitted as follows:

• Counts one through four: sexual exploitation of children, class three felony, § 18-6-403(3)(a), C.R.S.2008. Defendant was convicted on all four counts; counts one through three related to the girlfriend's daughter and four as to his daughter.

• Count five: sexual assault on a child — victim less than 15 — pattern of abuse, class three felony, § 18-3-405(1), (2)(d), C.R.S.2008. Defendant was acquitted.

• Counts six through eight: unlawful sexual contact — coerce child, class four felony, § 18-3-404(1.5), C.R.S.2008. Defendant was convicted on all three counts, which related to the girlfriend's daughter.

• Count nine: attempted sexual assault on a child — victim less than 15, class five felony, §§ 18-2-101, 18-3-405(1), C.R.S. 2008. Defendant was convicted on the count, which related to the girlfriend's daughter.

• Counts ten and eleven: indecent exposure — victim under 15, class one misdemeanor, § 18-7-302(1), (2)(b), C.R.S. 2008. Defendant was convicted of both counts; count ten related to his daughter and eleven to the girlfriend's daughter.

• Count twelve: sexual exploitation of children — sell or publish, class three felony, § 18-6-403(3)(b), C.R.S.2008. Defendant was convicted on the count, which related to the girlfriend's daughter.

• Counts thirteen and fourteen: sexual exploitation of children — possess material — for distribution, class three felony, § 18-6-403(3)(c), C.R.S.2008. Defendant was convicted on count fourteen, for which no victim was specified, and acquitted on count thirteen.

• Count fifteen: sexual exploitation of children — possess material, class one misdemeanor, § 18-6-403(3)(b.5), C.R.S.2008. Defendant was convicted, and no victim was specified.

• Count sixteen: aggravated incest — defendant's child under 21, class three felony, § 18-6-302(1)(a), C.R.S.2008. Defendant was acquitted.

• Count seventeen: attempted sexual assault on a child — victim less than 15 — position of trust, class four felony, §§ 18-2-101, 18-3-405.3(1), (2), C.R.S.2008. Defendant was convicted on the count, which related to the girlfriend's daughter.

• Count eighteen: crime of violence, sentence enhancer to counts one through three, § 18-1.3-406(2)(b), C.R.S.2008. Defendant was convicted of the count, which related to count three.

All charges against defendant stem from incidents occurring between October 1, 1999 and March 31, 2004.

A forensic examination of several computers to which defendant had access during the relevant period did not disclose any images of the victims or evidence that images of the children had been transmitted over the Internet. Defendant did not testify at trial.

Defendant was sentenced to consecutive prison terms of ten years to life on counts one through four (the measuring sentences), and lesser concurrent terms on all other convictions. This appeal followed.

I. Credibility

Defendant argues that reversal is required because of testimony from two investigating officers and a forensic interviewer vouching for the children's credibility. Because, in our view, this issue is dispositive, we need address the testimony of only one of the investigating officers.

A. Defendant's Daughter

Defendant was granted weekend visitations with his daughter at the girlfriend's house while he resided there. His daughter first made allegations of sexual contact in September 2004 after it was reported that she sometimes cried and seemed distraught when defendant picked her up. The investigating officer contacted defendant's ex-wife and then spoke with the daughter and a social worker at school. During that first interview, the daughter told the investigating officer that defendant drank, swore, spoke badly of her mother, and threatened the daughter. The investigating officer relayed the contents of the interview to the ex-wife, who picked the daughter up from school early and took her to work the next day. While at work, the ex-wife told a co-worker that she was upset because the daughter said that there was sexual activity going on in defendant's house. The co-worker then took the daughter aside and questioned her, later testifying that the daughter told her that defendant looked at naked women on the computer and played with himself. Armed with this new information, the ex-wife called the investigating officer, who then arranged for the daughter to be interviewed by a forensic interviewer.

The forensic interview was videotaped and shown to the jury. During the session, the daughter repeated that defendant looked at naked women on the computer and touched himself, while making masturbatory motions with his hands, and that he would unzip his pants. The daughter first denied that defendant ever asked her to come over and look, but then agreed that sometimes he did. She also denied that he ever touched her or asked to look at her and denied that he had asked her to watch his activities when he lived with his girlfriend. But she went on to say that she knew he had made the girlfriend's daughter watch because she told her all about it; that she saw defendant showing the computer to the girlfriend's daughter; and that the girlfriend's daughter told her that defendant made her watch him go to the bathroom. The daughter also said that she had once walked in on defendant watching a movie with naked women in it and described him as wearing red-checked underwear.

The daughter was then asked about the computer, and she said it had a camera and that defendant sometimes directed the camera at his own genitals. When asked specifically about defendant's genitals, the daughter said it was both skinny and fat; did not know if it was hard or soft; had never seen anything come out of it; and had never been asked to touch it, but claimed she saw the girlfriend's daughter touching it.

In police interviews, defendant denied viewing pornography on the computer or masturbating in front of his daughter. Later in September, the ex-wife called the police to report new allegations from the daughter. The daughter then alleged that defendant had patted her genitals and taken pictures of her and the girlfriend's daughter with the webcam.

The daughter was interviewed by a second forensic interviewer, and the jury saw the video-recording of that interview. She made the same claims — defendant viewed naked girls on the computer and played with himself — however, she stated that this had happened the previous Saturday, when in fact she had not seen defendant for at least three weeks. When asked to draw defendant's genitals, she said she did not know what it looked like and claimed to never have seen it, although later in the interview she said she saw it sometimes, but did not know how to draw it. The daughter then stated that defendant patted her genitals and made her take off her pants.

The camera angle for the forensic interview was such that it is improbable that the jury could form an independent opinion of the daughter's credibility based on her facial expressions or body language.

The daughter's testimony at trial was similar. While she testified that defendant once touched her between her legs with his hand while she was dressed in her underwear, after he had asked her to remove her pants, she did not remember which house they were in at the time or whether he rubbed her. She remembered that he had a computer with which he viewed naked women while fondling himself, but she did not remember him taking pictures of her with the computer's camera. While the daughter's demeanor cannot be determined from a transcript, her answers were single words or short phrases such as, "no," "I don't know," and "I don't remember" in response to leading questions.

B. The Girlfriend's Daughter

Defendant lived with the girlfriend from October 1999 until March 2004. The girlfriend's daughter was five and a half years old when he moved in and ten when he left.

When asked about what the daughter had said, the girlfriend's daughter reacted with tears and panic and said that defendant had taken pictures of her, but denied that any touching had occurred. The girlfriend's daughter then stated that defendant's conduct started when she was nine years old. She testified that defendant made her take off her pants and show her vagina, which he would show on the Internet using a webcam. During these times, defendant would touch himself.

The girlfriend's daughter also stated that defendant viewed naked adults and children on the computer and that she had seen him ejaculate several times. She testified that he asked her multiple times to touch his penis, but she declined. She also said that he asked if he could touch her, and she again said "no."

C. Analysis

At the outset, we note that this case turns entirely on the credibility of the daughter and the girlfriend's daughter. Both children testified at trial, and their pretrial statements made to investigating officers and their recorded...

To continue reading

Request your trial
45 cases
  • The People Of The State Of Colo. v. Tillery
    • United States
    • Colorado Court of Appeals
    • 19 Noviembre 2009
    ... ...         But “no definition [of plain error] will fit every case.” ... People v. Barker, 180 Colo. 28, 32, 501 P.2d 1041, 1042 (1972); ... People v. Cook, 197 P.3d 269, 276 (Colo.App.2008). The underlying principle, “a reasonable possibility that the error contributed to [the] conviction,” ... see, e.g., ... Kaufman v. People, 202 P.3d 542, 549 (Colo.2009), can be restated as looking for a reasonable possibility that the error ... ...
  • People v. Greer, 08CA0329.
    • United States
    • Colorado Court of Appeals
    • 21 Abril 2011
  • People v. Short
    • United States
    • Colorado Court of Appeals
    • 5 Abril 2018
  • People v. Alemayehu
    • United States
    • Colorado Court of Appeals
    • 20 Mayo 2021
  • Request a trial to view additional results
1 books & journal articles
  • Deconstructing Construction Defect Fault Allocation and Damages Apportionment-part Ii
    • United States
    • Colorado Bar Association Colorado Lawyer No. 40-12, December 2011
    • Invalid date
    ...v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (expert may not testify that child's account was "very believable"); People v. Cook, 197 P.3d 269, 276 (Colo.App. 2008) (officer's testimony that child victims were "credible" was "clearly erroneous" because question of the victim's credibility w......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT