People v. Eppens, 97SC469

• Decision Date: 26 April 1999
• Docket Number: No. 97SC469,97SC469
• Parties: 1999 CJ C.A.R. 2209 The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Scott Eugene EPPENS, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 14

979 P.2d 14

1999 CJ C.A.R. 2209

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Scott Eugene EPPENS, Respondent/Cross-Petitioner.

No. 97SC469.

Supreme Court of Colorado,

En Banc.

April 26, 1999.

Rehearing Denied June 14, 1999.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Senior Assistant Attorney General, Hugo Teufel, Deputy Solicitor General, Criminal Enforcement Section, Denver, Colorado, for Petitioner/Cross-Respondent.

David F. Vela, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, Colorado, for Respondent/Cross-Petitioner.

Justice RICE delivered the Opinion of the Court.

We granted certiorari to review People v. Eppens, 948 P.2d 20 (Colo.App.1997), in which the court of appeals reversed defendant Scott Eppens conviction for sexual assault on a child and remanded the case for a new trial. The court of appeals held that plain error occurred when a social worker testified that the child-victim's report of the sexual assault in question was "sincere." In addition, the court of appeals issued an advisory opinion regarding the admissibility on remand of several prior consistent out-of-court statements made by the victim. We conclude that the social worker's testimony constituted impermissible opinion testimony. We further hold, however, that the court of appeals erred in concluding that the admission of this testimony constituted plain error warranting reversal of Eppens' conviction. With regard to the second issue, we hold that the trial court did not err in admitting the victim's prior consistent statements, as they were relevant, nonhearsay statements that were admissible outside CRE 801(d)(1)(B). Accordingly, we reverse the court of appeals decision and remand to that court with directions to reinstate the judgment and sentence.

I.

On May 19, 1994, the defendant, Scott Eppens, was charged with one count of sexual assault on a child by one in a position of trust. ¹ This charge arose out of an allegation by Eppens' twelve-year-old stepdaughter, L.E., that he had molested her on several occasions, the last of which allegedly occurred on March 6, 1994.

On March 8, 1994, Eppens was arrested and placed in jail for physically assaulting L.E.'s mother, Darlene Eppens. Thereafter, L.E. told her mother that Eppens had molested her. This report to her mother was the first time L.E. told anyone of the alleged sexual assaults. In turn, Darlene Eppens notified the Pueblo Department of Social Services of the allegations. On March 24, 1994, a social worker, Eleanor Gutierrez, and a Pueblo police officer, Jerry L. Pino, met with L.E. and her mother in order to conduct a formal interview. Officer Pino made a record of the statement L.E. gave during this interview. Subsequently, L.E. underwent a physical examination which revealed findings consistent with sexual penetration.

On August 2, 1994, L.E. wrote a letter to Eppens, who was in jail awaiting trial, in which she recanted her previous accusations of sexual assault. In that letter, L.E. claimed that her stepbrother, S.E., had actually assaulted her.

Eppens' trial commenced on September 7, 1995. At trial, the prosecution presented four witnesses: L.E.; Officer Pino; the social worker; and the physician who examined L.E., Dr. Christine Nevin-Woods. Contrary to her letter but consistent with her initial accusations, L.E. testified that Eppens had molested her on several occasions, including an incident which occurred on March 6, 1994. On cross-examination, defense counsel impeached L.E. by reading the prior inconsistent statements from her letter into evidence and questioning her at length regarding her reasons for writing it. Furthermore, defense counsel elicited an admission from L.E. that she was angry with Eppens for assaulting her mother on March 8, 1994. Finally, defense counsel impeached L.E. by pointing out several factual discrepancies between her trial testimony and her March 24, 1994 statement to the police.

Thereafter, the prosecution presented the testimony of Officer Pino, who testified at length regarding the interview that he and the social worker had conducted with L.E. on March 24, 1994. Through Pino's testimony, the prosecution introduced several of L.E.'s out-of-court statements which were consistent with her testimony on direct examination. Defense counsel objected to the admission of these statements on the grounds that they constituted inadmissible hearsay. ² In response, the prosecution argued that the statements were admissible under CRE 801(d)(1)(B), as prior consistent testimony to rebut an express or implied charge of recent fabrication or motive, or, in the alternative, as rehabilitation evidence. The trial court overruled the defense objection and allowed Officer Pino to relate L.E.'s statements from the March 24 interview.

Following Officer Pino's testimony, the prosecution examined the social worker, Eleanor Gutierrez. During her testimony, the following exchange occurred:

Q. Ms. Gutierrez, how long have you been doing interviews of this sort with child sexual abuse victims?

A. Five years.

Q. Do you know how many interviews of this kind you have conducted yourself or with somebody?

A. I would say more than 50.

Q. What do you look at about them when they are telling you about an abuse?

A. Their affect, their demeanor, whether they're sad. Basically that.

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 [L.E.]?

A. I felt she was sincere.

Defense counsel did not object to this line of questioning at the time of the trial.

The jury returned a guilty verdict and the court sentenced Eppens to a term of eight years in prison. The court of appeals reversed Eppens' conviction, holding that the admission of the social worker's opinion that L.E. was "sincere" when making her allegations violated CRE 608(b). The court reasoned that the social worker's testimony constituted an opinion that L.E. was telling the truth on the specific occasion that she reported the sexual assault by Eppens, a type of opinion testimony that is inadmissible. The court further held that the admission of the social worker's opinion regarding L.E.'s sincerity constituted plain error. ³

In the interest of judicial economy, the court of appeals addressed Eppens' claim that on remand for a new trial, the prosecution should not be permitted to introduce L.E.'s out-of-court statements to Officer Pino. In an effort to clarify the requirements of CRE 801(d)(1)(B), the court of appeals held that a prior consistent statement offered to rebut a charge of recent fabrication or motive must have been made prior to the alleged motive or fabrication in order to be admissible. While the court acknowledged that L.E.'s statements to Officer Pino and the social worker were made after her alleged motive to lie arose, it held that the statements were admissible because the prosecution had offered the statements in response to a separate charge of "recent fabrication." Specifically, the court found that the implication by the defense that L.E.'s trial testimony was false represented a charge of recent fabrication, separate and apart from the allegation that her mother was pressuring her to lie about the sexual assault. Therefore, the court of appeals concluded that because the prior consistent statements had preceded the alleged recent fabrication, they could properly be admitted on remand.

We granted the prosecution's petition for certiorari to consider whether the social worker's testimony that L.E. was "sincere" violated the confines of CRE 608 and, if so, whether the admission of said testimony constituted plain error. We granted Eppens' cross-petition for certiorari to consider whether the court of appeals erred in concluding that L.E.'s prior out-of-court statements were admissible under CRE 801(d)(1)(B).

II.

Under CRE 404(a), "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." CRE 608(a) provides a limited exception to the general rule of CRE 404(a), to wit:

Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

It is well established that CRE 608(a)(1) does not permit a witness to offer an opinion that a child was telling the truth on the specific occasion that the child reported a particular sexual assault by a defendant. See People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989) (holding that physician's statement that medical history given by child-victim was "very believable" constituted impermissible opinion testimony on the witness' character for truthfulness); People v. Oliver, 745 P.2d 222, 225 (Colo.1987) (holding that testimony by a social worker and an investigator that they both personally believed the victims' statements was improperly admitted because it related to the victims' truthfulness on a specific occasion); People v. Snook, 745 P.2d 647, 649 (Colo.1987) (holding that social worker's testimony that children tend not to fabricate stories of sexual abuse was inadmissible because it went to the witness' truthfulness on a particular occasion); Tevlin v. People, 715 P.2d 338, 341 (Colo.1986) (holding that...