People v. Mintz

• Decision Date: 25 January 2007
• Docket Number: No. 04CA1024.,04CA1024.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey MINTZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

165 P.3d 829

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey MINTZ, Defendant-Appellant.

No. 04CA1024.

Colorado Court of Appeals, Div. I.

January 25, 2007.

Certiorari Denied August 13, 2007.

John W. Suthers, Attorney General, Katherine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Jeffery Mintz, appeals his judgment of conviction for two counts of assault on a child by one in a position of trust, § 18-3-405.3, C.R.S.2006, and two counts of aggravated incest, § 18-6-302, C.R.S.2006, as well as his sentence of forty-eight years to life in prison for those crimes. We affirm the judgment with merger of the convictions, vacate the sentence, and remand with directions.

I. Background

On Christmas Eve 2002, defendant's ex-wife (mother) was preparing to take her two daughters to visit defendant, their father. Before leaving for the visit, the five-year-old daughter (victim) informed mother defendant had inserted his penis into her vagina on previous visits and had forced her to wash his penis in the shower.

Defendant was then on probation for a previous sexual assault. In response to victim's outcry, mother called defendant's probation officer and his offense-specific treatment provider to find out what she should do. When she could not contact them, she left victim and her sister with defendant and returned home. She then called the police.

The police removed the children from defendant's apartment and started an investigation into the alleged sexual abuse. As part of the investigation, victim participated in two forensic interviews. At the second interview, she stated defendant had penetrated her with his finger and his penis.

The prosecution charged defendant with multiple counts arising out of the alleged abuse. He was convicted of two counts of sexual assault on a child by one in a position of trust and two counts of aggravated incest. The jury found the assaults were not part of a pattern of sexual abuse and acquitted defendant of all other counts.

The court imposed consecutive twenty-four-year sentences for the sexual assault convictions and for the aggravated incest convictions, ordering those two forty-eight-year sentences to be served concurrently.

II. Expert Testimony

Defendant contends his conviction should be overturned because the trial court allowed the prosecution's expert witness to testify the child victim in this case was telling the truth about being sexually abused. We disagree.

Expert testimony is admissible if the expert's specialized knowledge will assist the jury in understanding the evidence or in determining a fact in issue. CRE 702; People v. Shreck, 22 P.3d 68 (Colo.2001); People v. Pahl, ___ P.3d ___, 2006 WL 3040920 (Colo.App. No. 01CA2020, Aug. 24, 2006). In a sexual assault on a child case, an expert witness cannot give an opinion as to whether a victim is being truthful or untruthful on a specific occasion. Tevlin v. People, 715 P.2d 338 (Colo.1986); People v. Pronovost, 756 P.2d 387 (Colo.App.1987), aff'd, 773 P.2d 555 (Colo.1989).

An expert may testify as to the typical demeanor and behavioral traits displayed by a sexually abused child. People v. Morrison, 985 P.2d 1 (Colo.App.1999), aff'd, 19 P.3d 668 (Colo.2000); People v. Pronovost, supra; see People v. Fasy, 829 P.2d 1314 (Colo.1992) (court allowed a psychiatrist to explain the reasons victims of a sexual assault delay in reporting and the typical traits displayed by child suffering from posttraumatic stress disorder); People v. Lucero, 724 P.2d 1374 (Colo.App.1986) (permitted expert testimony on what typical incest family was like).

When testifying as to the typical behavioral traits of an abused child, the expert may respond to hypothetical questions involving the facts of the case at hand. People v. Morrison, supra. A trial court has broad discretion to determine the admissibility of expert testimony under CRE 702, and the exercise of that discretion will not be overturned on appeal absent an abuse of discretion. People v. Pahl, supra, ___ P.3d at ___; see People v. Wilkerson, 114 P.3d 874 (Colo.2005).

Here, the expert, a doctor, answered a number of hypothetical questions reflecting the facts of the present case. The expert testified about traits and behavior generally exhibited by children. He did not testify victim exhibited these traits, and he did not offer an opinion about whether victim told the truth about having been abused.

The purposes for which the expert's testimony was admitted in the case have previously been deemed proper. For example, testimony concerning why children lie about abuse, and what problems children have recounting specific instances of past abuse, was found admissible in People v. Morrison, supra.

In addition to the expert's testifying in general terms, both the prosecution and the expert made it clear to the jury the expert's testimony pertained to children in general and not victim in particular. At the beginning of her questioning of the expert, the prosecutor stated: "Doctor, I want to start talking about the area of child development, and when I talk about a child in particular today I'm talking about a five-year-old, and I'm asking you questions about five-year-olds in general."

On cross-examination defense counsel asked the expert, "Doctor, is it fair to say that many of your answers are conditional?" The expert responded, "Certainly. We are talking hypothetically."

This evidence was admissible "because the expert testified in general terms [and] did not focus on the truthfulness of the child's statements." People v. Morrison, supra, 985 P.2d at 5; see also People v. Deninger, 772 P.2d 674 (Colo.App.1989). Thus, the trial court did not abuse its discretion in admitting the expert's testimony.

III. Evidence of Other Crimes

Defendant contends his conviction should be reversed because the court erred in allowing the jury to hear evidence he was on probation, which, in turn, indicated he had committed other crimes. We disagree.

CRE 404(b) prohibits the admission of evidence of other crimes to prove a person's character "in order to show that he acted in conformity therewith." See People v. Boykins, 140 P.3d 87 (Colo.App.2005). Evidence of conduct that does not naturally lead a jury to infer a defendant committed a previous offense is not classified as "other crime" evidence subject to the requirements of CRE 404(b). People v. St. James, 75 P.3d 1122 (Colo.App.2002); People v. Cooper, 950 P.2d 620 (Colo.App.1997), rev'd on other grounds, 973 P.2d 1234 (Colo.1999); People v. Thiery, 780 P.2d 8 (Colo.App.1989); People v. Clark, 705 P.2d 1017 (Colo.App.1985).

At the time of the offense, defendant was on probation for a sexual assault conviction. As part of his probation, he was assigned a probation officer and an offense-specific treatment provider. The trial court allowed the prosecution and other witnesses to refer to defendant's probation officer as a "court appointed counselor" and his offense-specific treatment provider as a "court appointed therapist." The court required the use of such vocabulary in order to avoid any inference defendant had been involved in other criminal activity that might flow from use of their actual titles.

These witnesses testified mother left messages for them on the day victim first reported being molested, expressing concern for her daughters' safety. Mother testified defendant's "counselor" had the power to suspend his visitation rights. The lead detective on the case testified the "therapist" told defendant not to take showers with his daughters.

Neither the titles given to the witnesses, nor the witnesses' testimony, was covered by CRE 404(b). This evidence did not refer to or implicate defendant's prior conviction.

Because evidence of mother and defendant's divorce was presented at trial, the trial court concluded the jury was likely to infer the counselor and the therapist had been appointed by the court as part of the divorce proceeding, not because defendant was on probation, and mother contacted them because she was a party to the divorce. It was, therefore, reasonable for the trial court to anticipate the jury would conclude the therapist had the authority to suspend defendant's visitation rights and the counselor had the power to instruct defendant not to shower with his daughters because they had been appointed by the court in the divorce proceedings. Contrary to defendant's argument a single juror asking whether the jury could assume defendant was in therapy does not indicate the jurors thought defendant had committed other crimes.

Defendant argued at trial mother lied when she reported the abuse. Defendant asserted mother would not have allowed her daughters to go with him if she believed he had molested them. Testimony of the probation officer and treatment provider was relevant to refute this defense. This testimony suggested mother let the children visit defendant because she believed the "counselor" and the "therapist" could help her protect her daughters. Testimony from the probation officer about warnings to defendant to stop showering with his daughters was relevant to show defendant had knowledge such conduct was improper. Using the terms "counselor" and "therapist" allowed relevant evidence to be introduced while minimizing any prejudice to defendant based upon the source of that evidence. See CRE 403.

Thus, the trial court did not abuse its discretion by admitting this evidence because it was not "other crimes" evidence subject to CRE 404(b) and it was not likely to distract the jury or "cause overmastering hostility" toward defendant. People v. St. James, supra, 75 P.3d at 1125-26.

IV. Double Jeopardy

Defendant argues his sentence must be vacated because his multiple...