People v. Oliver

Decision Date02 November 1987
Docket NumberNo. 85SA389,85SA389
Citation745 P.2d 222
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Theodore R. OLIVER, Defendant-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David C. Johnston, Paonia, for defendant-appellant.

ERICKSON, Justice.

The defendant, Theodore Oliver, was convicted by a jury of sexual assault in the second degree, section 18-3-403(1)(f), 8 C.R.S. (1978 & 1984 Supp.); sexual assault in the third degree, section 18-3-404(1)(e), 8 C.R.S. (1978); and sexual assault upon a child, section 18-3-405(1), (2)(b), 8 C.R.S. (1978 and 1984 Supp.). He was sentenced to concurrently serve four years on the first charge, two years on the second charge, and four years on the third charge. As grounds for reversal, he contends on appeal that (1) opinion evidence of the credibility of the victims should not have been admitted; (2) the admission under section 13-25-129, 6 C.R.S. (1984 Supp.), of a social worker's testimony regarding the victims' out-of-court statements violated his constitutional right of confrontation; (3) he was denied equal protection of the laws because sections 18-3-404(1)(e) and 18-3-405 describe the same conduct and impose disparate penalties; (4) prosecutorial misconduct deprived him of his right to a fair trial; and (5) he was denied effective assistance of counsel in violation of the sixth amendment of the United States Constitution. We reverse and remand for a new trial in accordance with the directions contained in this opinion. 1

I.

On Monday, April 2, 1984, S.U. informed Oliver, an acquaintance, that she was having mechanical problems with her car and asked him if her children, R.M., M.M., and M. could catch the school bus at his residence. The defendant consented to the arrangement and the next day her children began to stay with the Olivers.

According to the testimony of R.M., S.U.'s seventeen-year-old son, he woke up early Wednesday morning and saw Oliver sitting next to him. Oliver stated that "he didn't feel up to it that night, and his wife needed a young stud and that [R.M.] was it." Oliver allegedly put his hand inside R.M.'s shorts and began rubbing his penis. After about twenty minutes, Oliver removed his hand and told R.M. not to tell anyone about what happened.

Around 10:00 p.m. Wednesday night, R.M. and Oliver were in the trailer in which Oliver kept his locksmith equipment. Oliver was working on a job application and R.M. was reading some of Oliver's paperwork. R.M. testified that Oliver showed him pornographic magazines and pictures of Oliver's nude wife. Oliver then allegedly performed fellatio on him. R.M. claimed that afterwards Oliver took a picture of him.

On Thursday, April 5, according to the testimony of M.M., S.U.'s fifteen-year-old son, Oliver gave him a massage. When M.M. complained of a headache, Oliver stopped the massage and gave him some aspirin. Oliver then lifted M.M.'s underwear and began rubbing his penis. M.M. turned away from Oliver and told Oliver to quit. Oliver left but returned within fifteen minutes. M.M. told Oliver that he "was prejudice[d] toward fags," and Oliver left the room.

According to the testimony of M., the fourteen-year-old daughter, on Friday, April 6, she was watching television at the Oliver residence. Oliver and his son, Scott, were also in the room. M.'s muscles were sore from playing softball and Oliver gave her a back massage. During the massage Oliver put his hand inside her underwear and touched her genitalia. When M. became upset, Oliver asked her if she was all right. She said no and he asked her if she wanted him to remove his hands. She said yes and he did so. She also testified that Oliver touched her breasts.

II.

The defendant contends that the rebuttal testimony of a social worker and an investigator that they personally believed each of the three victims, based upon their experience and interviews of the victims, 2 was reversible error. We agree. In Tevlin v. People, 715 P.2d 338 (Colo.1986), we condemned the admission of almost identical testimony but did not reverse because of the overwhelming evidence of guilt apart from the opinion testimony.

In Tevlin, the defendant was convicted of child abuse and second-degree assault of his six-year-old son. During the trial the son testified that the defendant had struck and injured him with a belt and belt buckle. The prosecution elicited testimony from a social worker, who had interviewed the victim and was qualified as an expert in the field of child abuse investigation, that he believed the son's statements regarding the cause of the injuries. We concluded that the testimony was improperly admitted because the expert's opinion related to the witness' truthfulness on a specific occasion and because the foundational requirements of CRE 608(a) for the admission of opinion testimony were not met. 3 See People v. Smith, No. 85CA1420, slip op. (Colo.App. Sept. 17, 1987); People v. Koon, 724 P.2d 1367, 1370-71 (Colo.App.1986); People v. Koon, 713 P.2d 410, 412 (Colo.App.1985); see also People v. Gallegos, 644 P.2d 920, 927 (Colo.1982) ("it is clearly improper to admit an investigating officer's testimony attesting to the accuracy or credibility of witness statements"); People v. Higa, 735 P.2d 203, 205 (Colo.App.1987).

The admission of the opinion testimony of the social worker and investigator in this case was reversible error which requires that the defendant be granted a new trial. 4 Tevlin, 715 P.2d 338; accord United States v. Azure, 801 F.2d 336 (8th Cir.1986); State v. Miller, 377 N.W.2d 506 (Minn.App.1985); State v. Holloway, 82 N.C.App. 586, 347 S.E.2d 72 (1986); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).

To avoid error upon retrial, we address some of the other issues raised by the defendant.

III.

The defendant contends that the admission under section 13-25-129, 6 C.R.S. (1984 Supp.), of the social worker's testimony regarding the victims' out-of-court statements about the sexual assaults violated his right of confrontation. 5 U.S.Const. amend. VI; Colo. Const. art. II, § 16. We disagree.

The sixth amendment right of confrontation guaranteed by the United States Constitution is applicable to the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965). In considering challenges to hearsay evidence based on the confrontation clauses of the United States and Colorado Constitutions, a case-by-case analysis is applied. People v. Dement, 661 P.2d 675, 680 (Colo.1983). A defendant's right of confrontation is satisfied if the hearsay declarant is produced for cross-examination or, if the declarant is shown to be unavailable, the hearsay bears "sufficient indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); Dement, 661 P.2d at 680-82 (applying the federal test to an alleged violation of Colo. Const. art. II, § 16). But see United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (a specific showing of unavailability is not always required). Because each of the three victims testified at trial and was available for cross-examination by the defendant, the defendant's right of confrontation was not violated under either the United States or the Colorado Constitutions. See People v. Hise, 738 P.2d 13, 15 (Colo.App.1986) (right of confrontation not violated where victim's out-of-court statements were admitted under section 13-25-129 and victim testified at trial); People v. Galloway, 726 P.2d 249, 253 (Colo.App.1986).

IV.

The defendant claims that sections 18-3-405(1), (2)(b), 8 C.R.S. (1978 & 1984 Supp.), and 18-3-404(1)(e), 8 C.R.S. (1978), deny him equal protection of the law because he was convicted under section 18-3-405(1), (2)(b), which prohibits substantially the same conduct as section 18-3-404(1)(e), but imposes harsher penalties. See People v. Calvaresi, 188 Colo. 277, 281-82, 534 P.2d 316, 318-19 (1975). Under section 18-3-404(1)(e) one commits sexual assault in the third degree if he "knowingly subjects a victim to any sexual contact [and] [a]t the time of the commission of the act, the victim is less than eighteen years of age and the actor is the victim's guardian or is otherwise responsible for the general supervision of the victim's welfare." Sexual assault in the third degree under section 18-3-404(1)(e) is normally a class-one misdemeanor but it is a class-four felony "if the actor compels the victim to submit by use of ... force, intimidation, or threat as specified in section 18-3-402(1)(a), (1)(b), or (1)(c)."

Section 18-3-405 provides:

(1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.

(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:

....

(b) The actor who commits the offense on a victim is one in a position of trust with respect to the victim.

"Position of trust" is defined in section 18-3-401(3.5) as follows:

One in a "position of trust" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, or family care, either independently or through another, no matter how brief, at the time of an unlawful act. 6

Equal protection of the law is guaranteed by the fourteenth amendment to the United States Constitution and by the due process clause in article II, section 25 of the Colorado Constitution. "When two...

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