Stevens v. People

• Decision Date: 16 July 1990
• Docket Number: No. 89SC105,89SC105
• Citation: 796 P.2d 946
• Parties: Roy Charles STEVENS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 946

796 P.2d 946

Roy Charles STEVENS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 89SC105.

Supreme Court of Colorado En Banc.

July 16, 1990.

Rehearing Denied Aug. 20, 1990.

David F. Vela, State Public Defender, Barbara S. Blackman, Chief Appellate Deputy, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Appellate Section Denver, for respondent.

Justice VOLLACK announced the Judgment of the Court and delivered an Opinion in which Chief Justice ROVIRA and Justice MULLARKEY join.

The defendant Roy Charles Stevens was convicted of two counts of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). The court of appeals affirmed his conviction. We granted certiorari to review the defendant's assertion that the trial court erred in holding that hearsay statements admitted pursuant to the child hearsay statute, § 13-25-129, 6A C.R.S. (1987), were sufficiently corroborated to be admissible by the child-victims' use of age-appropriate sexual terminology, sexual knowledge as demonstrated by their manipulation of anatomically correct dolls, and their behavioral changes. We affirm.

I.

Three children, J.L., E.E., and J.J., stated in July 1985 that the defendant, a daycare teacher hired in January 1985 by La Petite Academy (La Petite), had sexually assaulted them while they were attending the daycare center. J.L. and E.E. were about three and one-half years old; J.J. was almost four years old. The defendant was subsequently charged with three counts of sexual assault on a child.

None of the children testified at trial. The trial court ruled that J.L. and J.J. were incompetent to testify, and that E.E. was competent but unavailable. ¹ Pursuant to section 13-25-129, 6A C.R.S. (1987), the trial court permitted numerous individuals to testify regarding statements the children made to them implicating the defendant.

A.

We review separately the testimony surrounding the sexual abuse of J.L. and E.E. ²

1.

J.L. first attended La Petite on July 22, 1985, and he was assigned to the defendant's classroom. Shortly afterward, and before J.L. stopped attending La Petite two and one-half days later, J.L.'s mother noticed that J.L. began wetting and defecating in his pants even though he had only infrequent wetting "accidents" since he was toilet-trained more than ten months earlier. J.L. also began having nightmares, expressing fear of using the bathroom, and crying because "he said no one liked him." J.L.'s mother noticed that although J.L. normally was an outgoing child, "he just all of a sudden at home wasn't as rambunctious as he usually is." Moreover, on occasion J.L. would point to men and yell, "I hate him."

Shortly after his last day at La Petite, J.L. repeatedly stated he did not like "Mr. Steve," which J.L.'s mother understood was the defendant. J.L.'s mother then asked J.L. in the presence of J.L.'s father, "[H]as anyone ever touched you in your private parts?" J.L. responded, "Mr. Steve put his finger in my bottom, and there was poop on his finger." J.L. also stated that the defendant touched J.L.'s penis. The next day, J.L. stated that when the defendant put his finger on his "bottom," the defendant said he had "cung" or "come." J.L. told his mother and others that he was afraid of the defendant. On July 25, 1985, J.L. repeated his statements regarding the defendant to a doctor performing a physical examination on J.L. In addition, J.L. stated that the defendant had "peed" and it was "white."

In August 1985, J.L. told Detective Mara Piluras during an interview that "Mr. Steve stuck his finger in his bottom and got poop all over." Simultaneously, J.L. picked up an anatomically correct doll and "stuck his finger in the doll's anus." J.L. also indicated, using the doll, that the defendant had touched his penis.

Carolyn John, a psychiatric social worker who began providing therapy for J.L. in August 1985, testified that in the first session J.L. began playing with a toy kangaroo that had a baby kangaroo in its pouch and stated, "The baby kangaroo was scared, the baby kangaroo needed the diaper because he was afraid to go to the toilet." During the second therapy session two months later, J.L. drew a dot on paper and said the dot represented a boy; the boy was yelling "help, help, save me, yelling for his mommy and daddy to save him." During another session in November 1985, John told J.L. to tell her, "and not tell me make believe," what had happened at school and what the defendant had done to him. Without further prompting, J.L. stated, "He stuck his finger in my bottom and he touched my pee pee." After Ms. John provided J.L. with an anatomically correct boy doll, J.L. took the doll, pulled its pants down, and put his finger in the doll's rectum. J.L. also grasped the doll's penis with his fist. For months during the therapy sessions J.L. continued to talk about the defendant without prompting. John, who was qualified as an expert witness in the fields of social work and psychiatric social work, testified that J.L.'s symptoms were consistent with those of sexual assault victims, especially of a young age.

2.

E.E. began attending La Petite in September 1984. Although E.E. was not in the defendant's classroom, E.E.'s mother at times left E.E. in the care of the defendant, who was one of the first teachers to arrive at La Petite in the morning. E.E.'s mother noticed during the summer of 1985 that E.E. "suddenly became very different than she had ever previously acted." E.E. began having frequent inconsolable temper tantrums "for nothing in particular." Although E.E. had been toilet-trained since the summer of 1984 and had had only two "accidents" since then, in the summer of 1985 E.E. began bed-wetting two to three times a week. On a few occasions, E.E. urinated on herself upon walking into the living room of her home. In addition, E.E. began having nightmares two to three times a week in June and July 1985. E.E. stated that she was afraid to go to the bathroom, and that she wanted her mother to go to the bathroom with her and stay with her while she was in the bathroom.

After E.E.'s mother learned of allegations of child abuse at La Petite, she asked E.E. if anyone had touched her "on your private parts where you go potty." E.E. stated, "Yes, Mr. Stevens did." E.E. stated that the defendant pulled down her panties. Subsequently E.E. indicated that the defendant had squeezed her buttocks and touched her in the vaginal area. E.E. stated that the defendant committed the acts while other children were playing outside and the defendant took her inside the daycare for a "timeout." After E.E.'s first therapy session, E.E. told her mother without prompting, "Mr. Stevens rubbed his peanut in my face and peed on me." E.E. also stated that she had to wipe her face off with paper towels. In January 1986, when E.E.'s mother was enrolling E.E. in another daycare center, E.E. said, "I don't want a man teacher."

In August 1985, Detective Piluras interviewed E.E. using anatomically correct dolls. While E.E. was identifying anatomical parts of a girl doll, E.E. volunteered in a matter-of-fact tone, "You know what, Mr. Stevens pulled my panties down." When Piluras asked if anyone had ever touched her "body," E.E.'s word for "vagina," E.E stated that "Mr. Stevens" had with his hands. When Piluras asked if anything had been placed inside her, E.E. said the defendant had "put a bomb in her."

In September 1985, E.E. began receiving therapy from Pat McKee, a social worker. McKee testified that E.E., who was verbal and "precocious," was age-appropriate developmentally and behaviorally and could distinguish between reality, fantasy and lying. Over the course of several sessions, E.E. identified an anatomically correct doll as "Mr. Stevens" and stated that he did "bad things" to her. E.E. also stated that the defendant's penis got hard, that the penis felt big and too big for her mouth, that the defendant "pee'd in my face," and that the "pee" was "sticky and icky." McKee stated that E.E. could indicate where the defendant touched her and that sometimes it "kind of tickled" and other times it hurt. McKee stated that while E.E. was trying to describe the incident, "[i]t was obvious she didn't have all the words for all the things she experienced" at the time. McKee also testified, "This is a child who would be particularly difficult to coach. She has a mind of her own." McKee, who was qualified as an expert witness in the fields of social work and applied psychotherapy, testified that E.E.'s statements were consistent with those of sexually abused children, and that E.E.'s atypical behavior during summer of 1985 was consistent with children who have experienced trauma.

B.

The jury found the defendant guilty of two counts of sexual assault on a child, and the defendant was sentenced to two concurrent terms of six years imprisonment.

On appeal, the defendant argued that the trial court erred in admitting the hearsay statements of J.L., E.E., and J.J. because the sexual assaults were not corroborated as required by subsection 13-25-129(1)(b)(II), 6A C.R.S. (1987). The court of appeals affirmed, holding that the record contained sufficient corroboration of the sexual assaults.

II.

The issue is whether J.L.'s and E.E.'s age-appropriate sexual terminology, manipulation of anatomically correct dolls, and behavioral changes constitute "corroborative evidence" of the sexual abuse of the children, as required by section 13-25-129, 6A C.R.S. (1987).

A.

Section 13-25-129 provides in relevant part:

(1) An out-of-court statement made by a child ... describing any act of sexual contact, intrusion, or penetration ... performed with, by, on, or in the presence of the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is...