People v. Fasy, 89CA0463

• Decision Date: 14 February 1991
• Docket Number: No. 89CA0463,89CA0463
• Citation: 813 P.2d 797
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John FASY, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

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.

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 witness expressly to assert that the victim was being truthful on a specific occasion. People v. Koon, 713 P.2d 410 (Colo.App.1985) (Koon I); People v. Koon, 724 P.2d 1367 (Colo.App.1986) (Koon II).

And, even though the testimony contains no express assertion of the victim's truthfulness, testimony that amounts to an implied assertion of truthfulness is also improper. People v. Snook, supra.

In regard to the issue of an implicit affirmation of a child's truthfulness, this court has previously held that an expert's testimony to the effect that a child's demeanor and manner is consistent with the demeanor and reactions of other victims of sexual assault is not the testimonial equivalent of an assertion that the child was telling the truth on a particular occasion. People v. Pronovost, 756 P.2d 387 (Colo.App.1987), aff'd on other grounds, 773 P.2d 555 (Colo.1989). However, the Colorado Supreme Court has recently suggested that such testimony may be improper. See People v. Newbrough, 803 P.2d 155 (Colo.1990) (expert testimony that child's symptoms were consistent with those of other minor victims of sexual assaults "may be" interpreted as improper comment on truthfulness of child).

Here, the expert testimony went beyond a mere general description of the reactions of minor victims of sexual assault. Indeed, it even went beyond the expression of an opinion that the child evidenced such reactions and was suffering from post-traumatic stress syndrome.

Prior to expressing this opinion, this same expert witness had repeated to the jury a detailed, accusatory statement made to him by the child, which statement was offered for its truth pursuant to § 13-25-129. Given this testimony, therefore, when the witness then offered the opinion that the child was, in fact, suffering the after-effects of a prior sexual assault, such opinion must necessarily have conveyed to the jury the message that the expert considered the child's report to be truthful. See People v. Snook, supra.

Thus, the testimony given by the expert here went beyond even that approved in People v. Pronovost, supra. And, by allowing the same witness who testified respecting a detailed accusatory statement implicating defendant also to express the opinion that the child was suffering from a post-traumatic stress syndrome, the court erred.

Further, given the record here, we cannot say that the admission of this testimony was harmless error. There was no physical evidence that corroborated the child's statements. Thus,...