People v. Eppens

Decision Date20 March 1997
Docket NumberNo. 94CA2156,94CA2156
Parties21 Colorado Journal 386 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott EPPENS, Defendant-Appellant. . IV
CourtColorado Court of Appeals

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Eric V. Field, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Scott Eppens, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child by one in a position of trust. He contends the trial court erred in permitting testimony regarding the child's truthfulness on a specific occasion and in admitting a prior consistent statement to a police detective. We conclude that, because a witness improperly expressed an opinion essentially verifying that the child was being truthful in reporting the alleged sexual assault by defendant on the occasion in question, defendant's conviction must be reversed and the cause remanded for a new trial.

A twelve-year-old girl told her mother, and later the police, that defendant, her stepfather, had sexually molested her two days before he had physically assaulted her mother. As a result, defendant was charged and convicted of sexually assaulting the child on the day in question.

I.

Defendant challenges the admission into evidence of an opinion by a social services intake worker that the child was "sincere." We agree the evidence was not admissible. We further conclude that the error constitutes plain error, requiring that we reverse the conviction and remand the cause for a new trial.

A.

When the credibility of a witness has been attacked, opposing counsel may present evidence in the form of opinion or reputation referring to the character of the witness for truthfulness. See CRE 608(a); People v. Koon, 724 P.2d 1367 (Colo.App.1986). More specifically, in sexual assault situations, opinion testimony as to the credibility of the child-victim is admissible if that testimony relates to the child's general character for truthfulness. See People v. Ashley, 687 P.2d 473 (Colo.App.1984).

Likewise, the supreme court has concluded that if a qualified expert offers testimony that the behavioral characteristics of a child match those of children who have been victims of sexual assaults and, if believed, this testimony would assist the jury in deciding whether a sexual assault occurred, it may be admitted. See People v. Gaffney, 769 P.2d 1081 (Colo.1989); People v. Koon, supra; but cf. People v. Newbrough, 803 P.2d 155 (Colo.1990). The reasoning is that, while such testimony may incidentally give rise to an inference as to whether the victim is telling the truth, 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. See People v. Koon, supra.

However, neither a lay witness nor an expert witness may give opinion testimony that a child was telling the truth on the specific occasion that the child reported a particular sexual assault by the accused. That assessment is for the jury. See People v. Oliver, 745 P.2d 222 (Colo.1987); People v. Koon, 713 P.2d 410 (Colo.App.1985).

Here, a social services intake worker testified to the story the child had told, accusing defendant of sexually abusing her since she was three years old. The assaults would occur when defendant had been drinking. He would take the child out to his truck late at night when everyone else was asleep.

The child then told the witness that the last sexual assault took place two days before defendant physically assaulted her mother. Defendant woke her and carried her from the trailer where the family was living out to the mother's car.

In response to the prosecutor's questioning, the witness further testified that she had interviewed over fifty children who had been victims of sexual assault and had observed their affect and demeanor. The questioning then continued as follows:

Q. Are you able to make a determination about a child's sincerity from those kinds of characteristics?

A. It would be subjective. I mean yeah, I get a feeling as to whether a child is sincere or not.

Q. Did you draw any such conclusions about [the child in this case]?

A. I felt she was sincere.

By this response to the prosecutor's question, the intake worker was not merely expressing an opinion as to the child's general character for truthfulness. Indeed, the witness had no basis for expressing such an opinion.

Furthermore, as already noted, prior to offering her opinion, the intake worker testified in detail to the history of sexual abuse related to her by the child. The witness then testified that the child had also told her about the most recent assault, and she began relating the child's story that defendant had awakened her and carried her from the trailer in which the family was living to her mother's car. At that point, the witness was interrupted by an objection that the testimony was cumulative of that of a police detective, who had earlier related in detail the child's story about the alleged assault on the occasion in question. The court sustained the objection.

Nevertheless, the impact was the same as if the intake worker had herself related the story in the same detail as the police officer and then given her opinion: it increased the likelihood the jury would consider her opinion as evidence of the truthfulness of the child on a specific occasion. Cf. People v. Fasy, 813 P.2d 797 (Colo.App.1991), rev'd on other grounds, 829 P.2d 1314 (1992)(if a witness gives a detailed account of the circumstances of the offense before offering an opinion, then, regardless of the precise wording of the opinion later offered, the likelihood increases that a jury will consider the testimony as evidence of the truthfulness of a victim's specific allegation).

Likewise, the witness did not merely refer to general patterns of behavior or characteristics that children who have been sexually assaulted are likely to exhibit. Nor did she merely make a comparison of such patterns or characteristics with those of the child being interviewed.

Finally, as to the specific occasion of her interview with the child, the witness gave her opinion even though she was only able to get a "subjective ... feeling" as to whether a child was being sincere. Cf. People v. Exline, 775 P.2d 48 (Colo.App.1988)(any impropriety in social worker's testimony that something had happened to the child because her belief was a "subjective kind of a thing" was cured by trial court sustaining an objection).

Here, when the opinion expressed by the intake worker is considered in context, the jury could have, and most likely would have, understood that the witness was expressing her "feeling" that the child "was sincere" on the specific occasion of the interview. This was tantamount to verifying that the child was being truthful, not only in reporting sexual abuse, but also in reporting she was sexually assaulted on the date charged and that it was defendant who assaulted her. The evidence was therefore not admissible. See People v. Gaffney, supra; Tevlin v. People, 715 P.2d 338 (Colo.1986); People v. Pronovost, 756 P.2d 387 (Colo.App.1987).

B.

Because defendant made no objection to the testimony at trial, our review is limited to determining whether admission of the evidence constitutes plain error within the meaning of Crim. P. 52(b). Plain error has occurred when, after review of the entire record, we can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Moore v. People, 925 P.2d 264 (Colo.1996). We conclude that it did.

Here, evidence that the child had been assaulted on the day in question, and that defendant had committed the assault, was not overwhelming. Although a physical examination before trial had been consistent with penetration, the medical expert was unable to determine when or by whom the child had been assaulted. While other witnesses related the story of the sexual assault they had been told by the child, none provided further corroboration of the story.

A week before trial, in a letter to defendant, the child had recanted the allegation against him and instead had accused her half-brother of sexually assaulting her. She had made the same accusation in an earlier tape recorded statement. Nevertheless, at trial, she reasserted the accusation against defendant. She also testified to other sexual abuse by defendant when the family had lived in other states.

However, on cross-examination, the child admitted that, like the present claim, she had recanted a claim made in Nebraska that defendant had sexually assaulted her there. She also admitted she had lied to her mother before and that she had a "habit" of sometimes not telling the "exact truth."

The child's half-brother testified that he had engaged in consensual sex with her on several occasions. He stopped when she began dating his best friend, who he testified also had sex with her.

The child did not unilaterally disclose the alleged sexual assault by defendant. Rather, she made the assertion in response to a question from her mother a week after defendant had been jailed for physically assaulting the mother. The child claimed that the sexual assault on her had taken place two days before the physical assault on the mother. She admitted at trial that the assault on her mother had made her "mad at" defendant and that she picked this time to come forward "possibly" because her mother was angry with defendant. She...

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