People v. Koon, No. 84CA0583

• Docket Nº: No. 84CA0583
• Citation: 713 P.2d 410
• Case Date: November 14, 1985
• Court: Court of Appeals of Colorado

Page 410

713 P.2d 410 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
William C. KOON, Defendant-Appellant. No. 84CA0583. Colorado Court of Appeals,
Div. I. Nov. 14, 1985.
Rehearing Denied Dec. 12, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Douglas R. Manley, La Junta, for defendant-appellant.

PIERCE, Judge.

Defendant, William C. Koon, appeals his judgment of conviction for sexual assault on a child. We reverse.

Defendant's trial to the court stemmed from allegations made by a fourteen-year-old boy who had been placed under defendant's supervision at the Colorado Boys' Ranch. As was the custom at the ranch, boys were allowed to stay overnight at the homes of individual staff members. On one such occasion, the boy alleged that defendant sexually assaulted him. Six days after the alleged incident, the boy reported it. Much of the testimony at trial focused on the credibility of the boy, his

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psychological makeup, his untruthfulness in other instances, and on the credibility of the defendant.

I.

Defendant first argues that the trial court erred in excluding evidence of the boy's sexual history. He argues that although the two express exceptions listed in § 18-3-407(1), C.R.S. (1978 Repl.Vol. 8), do not apply to his case, evidence of the boy's prior sexual conduct should have nevertheless been admitted under § 18-3-407(2), C.R.S. (1978 Repl.Vol. 8). We disagree.

Section 18-3-407, C.R.S. (1978 Repl.Vol. 8), establishes a presumption that evidence of the victim's prior or subsequent sexual conduct is irrelevant. Pursuant to § 18-3-407(2)(e), the court here determined that evidence of the boy's prior homosexual conduct does not bear on his credibility and was irrelevant. The trial court went on to state that it would admit defendant's testimony regarding any conversations he had with the boy about his prior homosexual experiences.

The trial court's determination that evidence is irrelevant is within its sound discretion, and will not be reversed absent a showing of an abuse thereof. People v. Lowe, 660 P.2d 1261 (Colo.1983). Under the circumstances of this case, defendant has not overcome the presumption established by § 18-3-407; thus, no abuse has been shown. See People v. Gallegos, 644 P.2d 920 (Colo.1982).

II.

Defendant next contends that the trial court erred in allowing a social worker, who was qualified as an expert, to give his opinion as to the truthfulness of the boy's allegations against defendant. We agree that the social worker's testimony over-stepped the bounds of admissible character evidence.

Although CRE 704 states that opinion testimony is "not objectionable because it embraces an ultimate issue to be decided by the trier of fact," this rule does not admit all opinions. See Fed.R.Evid. 704 (Advisory Committee's Note). For example, under CRE 701 and 702, to be admissible, opinions must be helpful to the trier of fact, and CRE 403 calls for the exclusion of evidence which wastes time, misleads the jury, or is unfairly...