People v. Fasy, No. 89CA0463

• Docket Nº: No. 89CA0463
• Citation: 813 P.2d 797
• Case Date: February 14, 1991
• Court: Court of Appeals of Colorado

Page 797

813 P.2d 797 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
John FASY, Defendant-Appellant. No. 89CA0463. Colorado Court of Appeals,
Div. IV. Feb. 14, 1991.
Rehearing Denied March 14, 1991.
Certiorari Granted Aug. 5, 1991.

Page 798

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Douglas J. Friednash, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Frances Smylie Brown, Chief Appellate Deputy Public Defender, Denver, for defendant-appellant.

Opinion by Judge CRISWELL.

Defendant, John Fasy, appeals a judgment of conviction of sexual assault on a child. He argues, among other things, that the trial court erred in allowing an expert to give an opinion that the alleged victim suffered from post-traumatic stress syndrome and in admitting the hearsay testimony of certain witnesses. Because we conclude that, under the circumstances here, the admission of the expert testimony was improper, we reverse and remand for a new trial.

The young child in this case did not report the alleged sexual assault for a period of approximately three years. During this period, there was evidence that she suffered from sleeplessness, nightmares, and vomiting. She was treated for these symptoms by the same psychologist who later testified for the prosecution. After reporting the alleged assault, her nausea ceased and her sleeping habits improved.

At trial, the child was the first witness presented. She testified that she had not previously reported the assault because the defendant had threatened to kill her mother if she told anyone about the incident. She also testified that, at the time of the incident, she did not understand that defendant's actions were "wrong."

After the child's testimony, the prosecutor called several witnesses who testified pursuant to § 13-25-129, C.R.S. (1987 Repl. Vol. 6A), to various out-of-court statements that the child had made to them. These statements were generally consistent with the child's testimony.

One of these witnesses was the treating psychologist, who described the course of his counseling sessions with the child. He testified that, when he first began counselling her, she was sad, anxious, depressed, and reluctant to speak with him. Nevertheless, over a number of visits she described to him one specific instance of sexual assault by the defendant. He repeated this detailed statement to the jury. This witness also described the symptoms of post-traumatic stress syndrome, which he stated may be caused by a sexual assault and which include symptoms consistent with those he described the child as having. He was then allowed to opine that the child was presently suffering from this disorder.

I.

Defendant first argues that the trial court erred in admitting the testimony of the psychologist that the victim was presently suffering from a post-traumatic stress disorder. He contends such testimony should not have been admitted because it was the equivalent of a statement that the child was telling the truth about the alleged sexual assault. In light of the nature of the other testimony given by this same witness, we agree.

Generally, testimony that describes the reactions of other victims of sexual assaults is admissible only to support the victim's credibility after an attack has been made upon her character for truthfulness. People v. Snook, 745 P.2d 647 (Colo.1987). See Tevlin v. People, 715 P.2d 338 (Colo.1986). Cf. People v. Hampton, 746 P.2d 947 (Colo.1987) (in case of alleged sexual assault on adult, general explanation of reactions of persons suffering from rape trauma syndrome admissible to explain victim's delay in reporting assault).

However, even in those instances in which such evidence is admissible to rebut adverse character evidence, it is impermissible to allow a...