People v. Morrison, 96CA1565.

• Decision Date: 18 March 1999
• Docket Number: No. 96CA1565.,96CA1565.
• Citation: 985 P.2d 1
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cory MORRISON, Defendant-Appellant.
• Court: Colorado Court of Appeals

985 P.2d 1

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cory MORRISON, Defendant-Appellant.

No. 96CA1565.

Colorado Court of Appeals, Div. II.

March 18, 1999.¹

As Modified on Denial of Rehearing May 13, 1999.

Certiorari Granted October 4, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, David R. Little, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Robin Desmond, Deputy State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CRISWELL.

Defendant, Cory Morrison, appeals a judgment of conviction entered on a jury verdict finding him guilty of eight counts of sexual assault on a child. We affirm.

All eight counts were based on a series of assaults upon two young boys that had occurred during a two-year period when defendant was employed as a live-in, part-time, babysitter for one of the victims. Defendant also occasionally babysat the other victim during this period.

At trial, both victims, who were then nine years old, testified. Several other witnesses, including relatives and police officers, were also allowed to testify as to the hearsay statements of both victims, pursuant to § 13-25-129, C.R.S.1998. In addition, an expert witness testified with respect to the dynamics of sexual abuse. Focal issues at trial included the credibility of both victims and one of the victim's untruthfulness in other instances.

I.

Defendant initially contends that the trial court abused its discretion by denying a challenge for cause of a prospective juror who had allegedly expressed her inability to be fair and impartial. We conclude that, whether there was an abuse of discretion or not, defendant suffered no prejudice.

During voir dire, the trial court questioned the juror and satisfied itself that, with an instruction about the presumption of innocence, the juror would be able to determine the case on the evidence submitted. Accordingly, the trial court denied defendant's challenge. Thereafter, defendant chose not to excuse the juror by the exercise of a peremptory challenge, and she remained on the jury during the trial. Defendant used all of his peremptory challenges to excuse other prospective jurors.

To demonstrate that a defendant is prejudiced by a trial court's improper denial of a challenge to a prospective juror for cause, a defendant must exhaust all of his peremptory challenges. People v. Rodriguez, 914 P.2d 230 (Colo.1996).

Further, it has been said, although not definitively decided, that one of those challenges must be expended on the juror who assertedly should have been removed for cause. See People v. Prator, 856 P.2d 837 (Colo.1993)

; People v. Macrander, 828 P.2d 234 (Colo.1992) (fn. 13) (required prejudice reflected by defendant "being forced to use a peremptory challenge to remove the suspect juror whom the trial court refused to excuse for cause and by using all other available peremptory challenges on other prospective jurors.") The statement in People v. Russo, 677 P.2d 386, 388 (Colo.App.1983),

rev'd on other grounds,

713 P.2d 356 (Colo.1986) that there is no "principle of law which requires the defendant to exhaust his remaining challenge on the juror who was not removed for cause," does not persuade us otherwise. Russo was decided before either Rodriguez, Prator, or Macrander was announced. As the supreme court noted in a footnote to its Russo opinion, there is an "obvious tension" between the quoted statement and earlier supreme court precedent. See People v. Russo, supra, 713 P.2d at 363, fn. 7.

Here, because defendant chose not to excuse the juror in question by use of a peremptory challenge, the court's denial of his challenge for cause did not have the effect of reducing the number of peremptory challenges that he could exercise. Hence, he has failed to demonstrate how the court's denial of his challenge worked any prejudice upon him.

II.

Defendant next argues that the trial court committed plain error by allowing the prosecution's expert to give an opinion with respect to the credibility of the victims. We disagree.

As part of the prosecution's case, a licensed marriage and family therapist with a Ph.D. in clinical psychology testified as an expert in the area of sexual abuse treatment and the dynamics of sexual abuse. During the expert's first day of testimony, she testified, in general terms, about many aspects of sexual abuse including: (1) the grooming of victims by sexual offenders; (2) the common patterns of disclosure of sexual abuse by children, including delayed reporting; and (3) the differences between male and female victims, including the use of empowerment techniques by males. Defendant does not object to this portion of the expert's testimony.

The next morning, the prosecutor continued her direct examination of the expert with respect to empowerment statements that boys commonly make. The following exchange then took place between the prosecutor and the witness:

Q: ... we were talking about [sic] little bit yesterday about the difference between boys and girls in terms of their testimony and also statements, and that empowerment statements, I believe you called them, that boys will make.

Let me give you a hypothetical. Doctor, for example, if I were to give you the facts as follows: 9 year old boy who has made a report of sexual abuse, and he describes a large number of incidents of sexual contact, ranging from perpetrator, placing the boy's penis in his mouth as well as the perpetrator placing his penis between the boy's buttocks, and the boy reports this to the sheriff's department. And the boy also tells the investigator that while the perpetrator had his penis in his mouth he urinated in the perpetrator's mouth. He also stated that he ran away from the perpetrator. The perpetrator grabbed him and gave him a bruise.

Now, if I were to tell you that the 9 year old boy indicated to the sheriff's office that he lied when he talked about the urination in the mouth and the perpetrator chasing him, based on your experience with children and how they report, would those statements to the officer, concerning urinating in his mouth and running away — would those statements be concerning to you?

A: That hypothetical sounds like a good example actually, of what I was talking about yesterday when little boys-what they do with empowerment issues. He sounds to me like-or at least the way I would interpret that would be that was a way that the little boy could feel empowerment like one of the methods in his own mind, sort of [sic] psychological weapon to get back at the offender and again, just to review what I was talking about with empowerment yesterday it's common for particularly little boys to do that kind of thing with sexual abuse disclosures. They're not comfortable with being the victim and feeling weak and helpless. So many times we will see little boys say things like, `I hit him. I beat him up. I did something mean back to him,' or `I was fighting, but he did it any [sic] way.' So your hypothetical sounds like a good example actually of empowerment.

Q: Do you find that statements such as that are common when young boys are disclosing sexual abuse?

A: Yes. That's what I'm saying that I've seen that a lot with little boys particularly.

Q: Would that lie be inconsistent with sexual abuse?

A: No, it's important that as you are assessing the child's statement and credibility of the child's statements that you look at the whole picture, that that's one of the dynamics that you would look at certainly. And, you know, understand what that part of it means. It certainly doesn't mean that — if a child makes something up in that empowerment issue that the rest of what they say isn't true.

The hypothetical situated stated by the prosecutor contained facts identical to those presented by the evidence here. Specifically, one victim's report described the sexual abuse in the same way as in the prosecutor's hypothetical, but that victim later admitted that he had lied about two aspects of the incidents: the urination in his mouth and the perpetrator chasing him.

The expert witness then testified, again in general terms, about: (1) reactions that child sexual abuse victims commonly experience; (2) problems children typically have in recounting specific instances of past sexual activity; (3) reasons why children lie; and (4) possible effects upon the child of videotaping interviews. Shortly thereafter, the following exchange took place between the prosecutor and the witness:

Q: Doctor, my last question is in your experience, working with 9 year old boys, is it typical for a 9 year old boy to fabricate a homosexual experience?

A: I would say no.

Q: Can you explain that?

A: Well, first of all, it would not be typical for a 9 year old child period to fabricate something about sexual abuse, because in order to fabricate or make up a story you have to know something about it. And most 9 year olds don't have enough sexual knowledge to make up a sexual story and carry it through. So that would be one issue. Just in terms of false allegations with sexual abuse in children in general the studies are pretty consistently showing that there is a very low statistic of false allegations, fictitious reports by children between 2 and 7 percent. And that most of the fictitious reports that are made are made by adults alleging something happened to a child or by disturbed adolescents. Also we talked a little bit about the issue of the stigma of homosexuality for little boys and their development yesterday, and that would be another reason I would not think typical of 9-year-old boys to make up a homosexual experience.

Q: Would there be any motivation for them to do it?

A: No. Making up a story about whether there is any kind of sexual abuse does

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