People v. Fasy

• Decision Date: 18 May 1992
• Docket Number: No. 91SC220,91SC220
• Citation: 829 P.2d 1314
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John FASY, Respondent.
• Court: Colorado Supreme Court

Page 1314

829 P.2d 1314

The PEOPLE of the State of Colorado, Petitioner, v. John FASY, Respondent.

No. 91SC220.

Supreme Court of Colorado,

En Banc.

May 18, 1992.

Rehearing Denied June 8, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Wendy J. Ritz, Asst. Atty. Gen., Appellate Section, Denver, for petitioner.

David F. Vela, State Public Defender, Frances Smylie Brown, Chief Appellate Deputy Public Defender, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to consider the court of appeals decision in People v. Fasy, 813 P.2d 797 (Colo.App.1991), reversing defendant Fasy's conviction for sexual assault upon a child by one in a position of trust. The court of appeals concluded that the district court erred in admitting a psychologist's testimony that the victim suffered from a post-traumatic stress disorder, and reversed and remanded for a new trial. We reverse and remand with directions.

I.

On June 14, 1988, the defendant, John Fasy (Fasy), was charged under section 18-3-405, 8B C.R.S. (1986), ¹ with one count of sexual assault on a child by one in a position of trust. On December 19, 1988, a jury found Fasy guilty.

The People's case at trial consisted of the testimony of the victim, her mother, a school counselor, a police detective, and Dr. Mosley, the victim's therapist. The victim testified that in November 1985, Fasy lived next door and would babysit the victim for about forty-five minutes a day, three days a week, until the regular babysitter arrived. On the day of the incident, the victim stated that she was playing outside. Fasy told her to come into the house to take a bath. During the bath, Fasy sexually molested the victim. The victim testified that Fasy instructed her not to report the incident and threatened to kill or hurt her mother if she told. The victim did not disclose the incident until May 1988, when a school counselor talked to the victim and her classmates about improper touching. The victim was six years old at the time of the assault and nine years old when she testified.

The victim's mother, the school counselor, and a police detective corroborated the victim's account of the incident. The victim had provided details of the sexual assault to these witnesses, and they testified based on the victim's out-of-court statements concerning the incident, pursuant to section 13-25-129, 6A C.R.S. (1987) (out-of-court statements made by sexually abused child to third party are admissible). In addition to recounting the victim's statements about the assault, the mother also testified concerning the victim's behavior from the time of the incident to the date of disclosure. She testified that, among other things, the victim was experiencing nightmares, having difficulty sleeping, and was vomiting for no reason.

The final witness presented by the People was Dr. Mosley, a psychologist who had been treating the victim since June 1988. Fasy objected to the admission of Dr. Mosley's testimony that the victim suffered from post-traumatic stress disorder. ² Fasy argued that such testimony should not be admitted because it was the equivalent of a statement that the child was telling the truth about the alleged sexual assault. The district court overruled Fasy's objection.

The district court qualified Dr. Mosley as an expert in child psychology. Dr. Mosley first described the symptoms of post-traumatic stress disorder and stated that a sexual assault on a child could be a traumatic event that could trigger the disorder. He then testified that the symptoms suffered by the victim--including sleeplessness, nightmares, and vomiting--were consistent with the symptoms of post-traumatic stress disorder. He expressed his opinion, as an expert in child psychology, that the victim suffered from post-traumatic stress disorder. Dr. Mosley did not testify as to the details of the incident, except for a statement that the victim told him that she had delayed in reporting the incident because of the threat against her mother and family.

The court of appeals reversed Fasy's conviction based on the district court's admission of Dr. Mosley's testimony concerning the victim's post-traumatic stress disorder. Citing People v. Koon, 713 P.2d 410 (Colo.App.1985), and People v. Snook, 745 P.2d 647 (Colo.1987), the court of appeals first noted that it is impermissible to allow a witness to expressly or impliedly assert that the victim was being truthful on a specific occasion. It then concluded that Dr. Mosley's opinion that the victim was "suffering the after-effects of a prior sexual assault," combined with Dr. Mosley's testimony about the accusatory statement made to him by the child, conveyed to the jury that Dr. Mosley considered the child's report to be truthful. ³

We granted certiorari to determine whether the court of appeals correctly concluded that Fasy's conviction should be reversed because the opinion expressed by Dr. Mosley was the equivalent of an impermissible expression of his belief that the victim was telling the truth on a specific occasion.

II.

The People argue that Dr. Mosley's testimony concerning the victim's post-traumatic stress disorder is admissible pursuant to CRE 702 because Dr. Mosley's testimony was helpful in assisting the jury to understand other evidence and determine a fact in issue. They contend that the testimony corroborated the victim's testimony and placed the victim's post-assault behavior into context. We agree.

A.

CRE 702 governs the admission of expert testimony. People v. Hampton, 746 P.2d 947, 951 (Colo.1987). CRE 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

CRE 702 employs a "helpfulness" standard that is applied on a case-by-case basis. Jack B. Weinstein & Margaret A. Berger, 3 Weinstein's Evidence p 702, at 702-13 to 702-18 (1988). The proffered expert testimony is admissible if it "will assist the fact finder to either understand other evidence or to determine a fact in issue." Lanari v. People, 827 P.2d 495, 502 (Colo.1992); see also Fed.R.Evid. 702 advisory committee's note. The critical question trial courts must answer when determining the admissibility of proffered expert testimony under CRE 702 is: " 'On this subject can a jury from this person receive appreciable help?' " People v. Williams, 790 P.2d 796, 798 (Colo.1990) (quoting Jack B. Weinstein & Margaret A. Berger, 3 Weinstein's Evidence p 702, at 702-07 to 702-08 (1988)) (quoting 7 Wigmore on Evidence § 1923, at 21 (3d ed. 1940)).

CRE 703 and CRE 704 provide additional guidance to trial courts in determining the admissibility of expert testimony. CRE 703 provides that the facts or data forming the basis of the expert opinion "may be those perceived by or made known to [the expert] at or before the hearing" and that the facts or data need not be admissible if such facts or data are "reasonably relied upon by experts in the particular field." CRE 704 provides that "[t]estimony in the form of opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."

B.

A review of Dr. Mosley's testimony supports our conclusion that his testimony is admissible under CRE 702. The district court conducted an in camera hearing to determine whether the post-traumatic stress disorder testimony was admissible. During the hearing, Dr. Mosley testified to the causes of the disorder, that the disorder has gained general acceptance in the medical field, that he has treated persons who suffered from the disorder, that a sexual assault on a young child can cause the disorder, and, finally, that the victim suffered from the disorder and explained the basis for this diagnosis. The court ruled that, based on this testimony, he would allow Dr. Mosley to express his opinions as an expert in child psychology. ⁴

After the in camera hearing, Dr. Mosley was recognized before the jury as an expert in the field of child psychology. He described the various emotional and physical symptoms of post-traumatic stress disorder and also stated that a sexual assault is a traumatic experience that can trigger the disorder. He then testified that the victim's symptoms were consistent with a child suffering from the disorder. After reviewing the victim's symptoms, Dr. Mosley testified that it was his opinion, based on a reasonable degree of psychological certainty and his counseling of the victim, that the victim suffered from post-traumatic stress disorder.

Dr. Mosley's testimony clearly assisted the jury in understanding the victim's behavior after the incident. See People v. Pronovost, 756 P.2d 387, 388 (Colo.App.1987) (psychiatrist's testimony that victim's demeanor and the manner in which victim gave her account of incident were consistent with typical child abuse cases was admissible), aff'd on other grounds, 773 P.2d 555 (Colo.1989); People v. Koon, 724 P.2d 1367, 1369-70 (Colo.App.1986) (testimony of psychologist about behavioral patterns of child incest victims and testimony of sociologist that victim fit these patterns admissible in child abuse case); United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.1987) (psychologist's comparison of characteristics of sexually abused children to characteristics exhibited by victim was admissible); State v. Myers, 359 N.W.2d 604, 610 (Minn.1984) ("Background data providing a relevant insight into the puzzling aspects of the child's conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in c...