People v. Heredia-Cobos

• Citation: 415 P.3d 860
• Decision Date: 19 October 2017
• Docket Number: Court of Appeals No. 15CA1425
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Israel HEREDIA-COBOS, Defendant-Appellant.
• Court: Court of Appeals of Colorado

415 P.3d 860

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Israel HEREDIA-COBOS, Defendant-Appellant.

Court of Appeals No. 15CA1425

Colorado Court of Appeals, Div. VII.

Announced October 19, 2017

Cynthia H. Coffman, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Springer and Steinberg P.C., Michael P. Zwiebel, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE J. JONES

¶ 1 Defendant, Israel Heredia-Cobos, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. One of the issues he raises is whether the district court abused its discretion in allowing a forensic interviewer to testify that the child victim, Y.P., didn't appear to have been coached as to what to say during an interview. Though such testimony is usually inadmissible, we conclude that in this case the defense opened the door to the forensic interviewer's testimony by challenging the victim's statements on the basis that she had fabricated them, at least in part, because of coaching by her relatives and others. We also reject defendant's other contentions, and therefore we affirm.

I. Background

¶ 2 Defendant is Y.P.'s great uncle. When Y.P. was nine years old, she spent the night at defendant's home with other family members. While she was playing on the trampoline with her cousins, defendant came outside and said that cake was being served. After Y.P.'s cousins went inside the house, defendant pushed Y.P. down, got on top of her, and touched her breast. He then tried to put his hand down her pants, but Y.P. pushed him off and ran inside.

¶ 3 Y.P. reported the assault just over four years later after a classmate told her that she had been raped by her father. The People charged defendant with a single count of sexual assault on a child.

II. Discussion

¶ 4 Defendant contends that the district court abused its discretion by (1) allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn't show any signs of having been coached and (2) allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b).

A. Witness Testimony Regarding Coaching

1. Preservation and Standard of Review

¶ 5 The parties agree that defendant preserved this issue.

¶ 6 We review the district court's evidentiary rulings for an abuse of discretion. People v. Faussett , 2016 COA 94M, ¶ 33, 409 P.3d 477. To constitute an abuse of discretion, the district court's evidentiary ruling must have been manifestly arbitrary, unreasonable, or unfair, or based on a misunderstanding or misapplication of the law. Id.

2. Analysis

¶ 7 The prosecutor called Lisa Tani, a forensic interviewer, to testify as an expert about her interview of Y.P. (Defense counsel didn't object to the prosecutor's request that Ms. Tani be allowed to give expert testimony.)

¶ 8 Ms. Tani initially testified about how she interviews children generally. The prosecutor asked her whether "there are certain things that you are looking for or precautions that you are taking throughout the interview?" Ms. Tani replied, "So while we interview children we assess for coaching, suggestibility, ... how trauma may affect their memory, ... development, those type of things."

¶ 9 The prosecutor later returned to the subject of coaching.

Q: Okay. You also said that you're looking for signs of suggestibility, um, and you mentioned coaching, signs of coaching. What signs of coaching are you talking about?

A: So if a child has been coached, which typically you will see a child being coached under the age of 10, they are usually coached on that specific event. So a caregiver—they might overhear someone talking about an event, so they will come in and just tell you about that event. Typically, they don't have the sensory detail that we look for, the peripheral details, and they have limited information regarding that event.

¶ 10 Ms. Tani also testified that she doesn't assess the child's credibility, but when asked what she assesses during an interview she said, "I will assess on coaching. If I feel that ... they were being suggestive, ... I will come up and talk to the parents."

¶ 11 The prosecutor then turned to Ms. Tani's interview of Y.P.

Q: Did you—and I'm not asking you to opine on her credibility, but did you see any indication throughout that interview of the concerns that you have just talked about?

Defense counsel objected that the question called for Ms. Tani to comment on Y.P.'s credibility. The prosecutor argued that such testimony wasn't an opinion about credibility and pointed out that the defense had brought up "numerous times" at trial that Y.P. had made up the allegations "because she overheard gossip or ... was somehow trying to fit in as a peer at school." So, the prosecutor argued, the testimony was relevant to rebut that theory. The court overruled the objection, reasoning that "whether signs of coaching were there [doesn't go] directly to credibility or truthfulness."

¶ 12 The prosecutor then continued questioning Ms. Tani about whether Y.P. appeared to have been coached.

Q: Okay. Ms. Tani, as I said, um, you can't opine on the credibility of the child or whether you believed the child or things like that. What I'm asking you is based on the things that you just talked about that you're assessing during an interview, did you see any indications of coaching during this interview?

A: No, I did not.

Q: Or that things had been suggested?

A: No, I did not.

Q: You also talked about, um, looking for sensory details and peripheral details throughout the interview. Did you observe [Y.P.] make details that are peripheral in this case?

A: Yes, I did.

¶ 13 Ms. Tani then testified as to the various details Y.P. told her about during the interview, such as whom she was with, what she was doing (playing on the trampoline), the smell of defendant's breath, and how cold it was outside.

¶ 14 It doesn't appear that defendant challenges Ms. Tani's testimony about how she interviews children, including that she looks for signs of coaching. Instead, he focuses on Ms. Tani's testimony that she didn't see any indications that Y.P. had been coached. We conclude that although such testimony ordinarily is improper (because it's tantamount to vouching for the child's credibility), in this case the testimony was admissible to rebut defendant's theory of defense. See People v. Quintana , 882 P.2d 1366, 1375 (Colo. 1994) (erroneous admission of evidence under a rule of evidence not reversible where evidence was admissible for a different reason); People v. Pernell , 2014 COA 157, ¶ 36, 414 P.3d 1 (an appellate court may affirm a district court's ruling allowing evidence on any ground supported by the record) (cert. granted on other grounds Aug. 31, 2015).

¶ 15 "[E]xperts may not offer their direct opinion on a child victim's truthfulness or their opinion on whether children tend to fabricate sexual abuse allegations." People v. Wittrein , 221 P.3d 1076, 1081 (Colo. 2009). Expert testimony regarding typical behavior of abused children is admissible only if it addresses "general characteristics evidence which (1) relates to an issue apart from credibility and (2) only incidentally tends to corroborate a witness's testimony." People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603.

¶ 16 Although Ms. Tani didn't explicitly say that Y.P. was being "truthful," by opining that Y.P. didn't show any indication of having been coached, she conveyed the impression that she thought Y.P. was being truthful. Ordinarily, such testimony shouldn't be allowed. See People v. Eppens , 979 P.2d 14, 17-18 (Colo. 1999) (error to admit social worker's testimony that she felt the child sexual abuse victim "was sincere" in her forensic interview); People v. Snook , 745 P.2d 647, 649 (Colo. 1987) (social worker's testimony that children tend not to fabricate stories of sexual abuse was inadmissible because it went to the witness's truthfulness on a particular occasion); Cernazanu , ¶¶ 16-23 (district court erred in allowing mother's testimony that child victim didn't engage in her typical "lying" behavior when she reported sexual assault by the defendant; such testimony "necessarily implied" that mother thought the victim hadn't lied); People v. Bridges , 2014 COA 65, ¶ 16, 410 P.3d 512 (interviewer's testimony that child victims "had not been coached constituted conclusions about their truthfulness in their respective interviews" and was therefore inadmissible opinion).

¶ 17 We aren't persuaded to the contrary by the People's assertion that testifying that a child didn't show signs of having been coached is not the same as testifying that the child hasn't been coached, and therefore isn't an assessment of the child's credibility. The subtle distinction urged by the People is likely to be lost on ordinary jurors; rather, ordinary jurors, putting two and two together, are likely to glean from such testimony that the interviewer believed the child hadn't been coached.

¶ 18 Nor are we persuaded by the People's argument that Ms. Tani's testimony was admissible under CRE 608. While CRE 608(a) sometimes allows a witness to present evidence of another witness's character for truthfulness, it doesn't allow a lay or expert witness to testify that "another witness was telling the truth on a specific occasion ." Wittrein , 221 P.3d at 1081 (emphasis added); see also People v. Lopez , 129 P.3d 1061, 1066 (Colo. App. 2005) ("[A] witness's or prosecutor's personal opinion on the credibility of witnesses intrudes upon the province of the jury to make credibility determinations."). Because Ms. Tani testified to Y.P.'s truthfulness on a specific occasion (during her interview), and not generally, the testimony at issue wasn't admissible under CRE 608. See People v. Gaffney , 769 P.2d 1081, 1088 (Colo. 1989) (" CRE 608(a) would have permitted the prosecuting attorney to elicit on direct examination of [the witness]...