People v. Trujillo, 93CA1990

• Docket Nº: No. 93CA1990
• Citation: 923 P.2d 277
• Case Date: January 25, 1996
• Court: Court of Appeals of Colorado

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923 P.2d 277 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Raphael S. TRUJILLO, Defendant-Appellant. No. 93CA1990. Colorado Court of Appeals,
Div. I. Jan. 25, 1996.
Rehearing Denied Feb. 22, 1996.
Certiorari Denied Sept. 9, 1996.

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Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Sandra K. Mills, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Raphael Trujillo, appeals from the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child by one in a position of trust. We affirm and remand with directions.

According to the prosecution's evidence presented at the pre-trial hearing, in April 1992, the victim, defendant's stepdaughter, then age six, told her two friends who were ten and eleven years old, that "after school some days [she and defendant] would take their clothes off and then they would lick and touch each other." The victim told her friends not to tell anyone because defendant had said if she did, he would hurt her and the person she told.

Both friends reported the victim's statements to their mothers and one mother called the department of social services.

This initiated an extensive investigation by police and social services involving interviews with the victim and defendant's natural daughter (second victim) then age four, physical examination of the children by a doctor, and reports by foster care providers.

The children's statements in these interviews were inconsistent, sometimes indicating improper actions by defendant, but other times denying that any abuse had occurred.

Following a lengthy pre-trial hearing, the trial court found both children competent to testify at trial.

At trial, the first victim, who was then seven years old, testified that she did not recall anyone touching her on her private parts, and she further denied that defendant had touched her. The second victim, then six years old, similarly testified that defendant did not touch her private parts.

The victims' mother testified that the children never told her that defendant had sexually assaulted them and that the first victim had told her it was a lie she made up because defendant treated her sister better than he treated her.

However, two therapists testified. One testified that the first victim had told her defendant had touched her. The other therapist

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testified that both victims denied having been touched by defendant. The convictions at issue resulted.

I.

Defendant first contends that the trial court abused its discretion in restricting the scope of his cross-examination of the second victim at the competency hearing. We disagree that the trial court's refusal to allow the defendant the latitude he sought in cross-examination at the competency hearing constitutes an abuse of discretion and requires a reversal of his conviction as to that victim.

Initially, we address the relevancy of the competency ruling, given the fact that the trial testimony of the second victim in itself did not prejudice the defendant. She denied that he had touched her private parts. Nevertheless, the trial court's finding that the second victim was competent to testify was significant.

Section 13-25-129, C.R.S. (1987 Repl.Vol. 6A) provides that if, as here, a child-victim is "available" as a witness and testifies at the proceedings, the prosecution may introduce her out-of-court statements through the testimony of other witnesses only after convincing the court "that the time, content and circumstances of the statement provide sufficient safeguards of reliability...." Section 13-25-129(1)(a).

However, if the child-victim is unavailable, which is the case if she is found incompetent, her hearsay statements may not be admitted also without "corroborative evidence of the act which is the subject of the statement." Section § 13-25-129(1)(b)(II). See Stevens v. People, 796 P.2d 946 (Colo.1990).

Thus, here, the defendant asserts prejudice because the trial court's finding of competency permitted introduction of the second victim's hearsay statements without the additional requirement of corroboration.

Section 13-90-106(1)(b)(I), C.R.S. (1987 Repl.Vol. 6A), establishes the general principle that children under the age of ten are incompetent to testify if they "appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly." However, an exception applies in proceedings for sexual assault. Under § 13-90-106(1)(b)(II), C.R.S. (1995 Cum.Supp.), a child is competent to testify if "the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined." See People v. Seacrist, 874 P.2d 438 (Colo.App.1993). Subsection 13-90-106(1)(b)(II) thus abolished the presumption that child victims of abuse are incompetent to testify. See People v. District Court, 791 P.2d 682 (Colo.1990).

Determining the competency of a witness of tender years is ordinarily for the trial court, and unless there is an abuse of discretion, a ruling on that question will not be disturbed on review. People v. Aldrich, 849 P.2d 821 (Colo.App.1992).

Colorado appellate decisions are inconclusive on the issue whether our competency statute simply allows, or specifically requires, child witnesses to be asked about the facts of the alleged offense in order to determine whether they are competent to testify at trial.

In People v. District Court, 776 P.2d 1083 (Colo.1989) and People v. District Court, 791 P.2d 682 (Colo.1990), the supreme court reiterated the principle that child-witnesses must be able to describe or relate in age-appropriate language the events to which they will testify at trial. However, we do not read either case as requiring that child-witnesses be interrogated about the events of the criminal offense before being declared competent to testify. See also People v. Vialpando, 804 P.2d 219 (Colo.App.1990) (trial court did not abuse its discretion in finding child competent to testify where child: (1) knew her grade in school; (2) knew defendant by his first name; (3) knew that the day of the assault was "Bronco" day; (4) knew the difference between the truth and a lie and the consequences for telling one or the other; and (5) told the court that she promised to tell the truth; neither counsel questioned the child's ability to observe and relate facts accurately).

Other jurisdictions are divided on the issue.

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For example, in Minnesota, trial...