The People Of The State Of Colo. v. Tillery

Decision Date19 November 2009
Docket NumberNo. 06CA1853.,06CA1853.
Citation231 P.3d 36
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee,v.Thomas Dean TILLERY, Defendant-Appellant.
CourtColorado Court of Appeals




John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Defendant, Thomas Dean Tillery, appeals the judgment of conviction entered on a jury verdict finding him guilty of five counts of sexual assault on a child (SAOC) as part of a pattern, section 18-3-405(1), (2)(d), C.R.S.2005; five counts of sexual assault on a child-position of trust (POT), section 18-3-405.3(1), (2)(a), C.R.S.2009; one count of SAOC with a second victim, section 18-3-405(1); and two counts of contributing to the delinquency of a minor, section 18-6-701, C.R.S.2009. We affirm the judgment of conviction.

Tillery also appeals the trial court's concurrent sentences of sixty years to life under the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, C.R.S.2009, on each of the pattern and POT counts. We vacate these sentences and remand for resentencing in accordance with this opinion.

All of the pattern and POT counts were based on evidence that Tillery had sexually assaulted his twelve year old stepdaughter over a seven month period while she was living with him. The victim also testified that six years earlier, Tillery had sexually assaulted her while they were living in Bennett, Colorado, although this incident was not charged. During trial, the prosecution introduced a recording of a pretextual phone call initiated by the victim's mother in which Tillery admitted to having had sexual contact with the victim.

I. Evidentiary Issues

“A trial court has substantial discretion in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion.” People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001). “An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair.” Id.

A. Admissibility of the Bennett Incident

Tillery first contends the trial court erred by admitting evidence of the Bennett incident without satisfying CRE 404(b) and section 16-10-301, C.R.S.2009. We disagree.

Before trial, Tillery moved to preclude uncharged conduct evidence under CRE 404(b), including the Bennett incident. The trial court agreed with the prosecutor's statement that the Bennett incident was admissible “in order to prove pattern at trial,” and added that evidence of the Bennett incident was “res gestae, not 404(b).” We perceive no error, although we decline to rely on res gestae. See People v. Eppens, 979 P.2d 14, 22 (Colo.1999) (appellate court can affirm the court's rulings on any basis supported by the record).

The former version of section 18-3-405(2)(d) (ch. 322, sec.8, § 18-3-405(2)(d), 2002 Colo. Sess. Laws 1582), under which Tillery was convicted, made SAOC a class three felony if:

The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within 10 years prior to or at any time after the offense charged in the information or indictment. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5).

Both then and now, a pattern of sexual abuse has been defined as “the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.” Section 18-3-401(2.5), C.R.S.2009.

“To prove a pattern of abuse under ... [section] 18-3-405(2)(d), the prosecution must prove beyond a reasonable doubt that (1) the defendant committed an act charged under [section] 18-3-405(1), ... that constituted the predicate offense for [section] 18-3-405(2)(d); and (2) the other act or acts constituting the pattern of sexual abuse were committed within ten years prior to [or at any time after] the predicate offense.” People v. Kyle, 111 P.3d 491, 502 (Colo.App.2004).

Thus, evidence of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or design. People v. Bowring, 902 P.2d 911, 916 (Colo.App.1995) (evidence of pattern acts not subject to CRE 404(b) procedural safeguards). “Rather, it is evidence that forms an integral part of the offense with which the defendant was charged, and no limiting instructions are required.” Id.

Further, section 16-10-301(5) provides that [t]he procedural requirements of this section shall not apply when the other acts are presented to prove that the offense was committed as part of a pattern of sexual abuse under section 18-3-405(2)(d).”

Accordingly, because the Bennett incident occurred within ten years prior to the predicate offenses charged under section 18-3-405(1) and was admissible as evidence of a pattern of sexual assault against the same victim, we conclude that the trial court did not err.

B. Forensic Interviewer's Testimony

Tillery next contends the trial court erred by admitting testimony of a forensic interviewer that allegedly vouched for the victim and constituted expert testimony which did not comply with CRE 702. We reject both contentions.

The victim told the forensic interviewer of sexual contact with Tillery. A recording of the interview was played during trial and the interviewer testified about it.

1. Improper Vouching

CRE 608(a)(1) does not permit a witness to opine that a child victim was telling the truth when the child reported a particular sexual assault by a defendant. See People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989).

[H]owever ... an opinion as to the credibility of the victim is admissible if that testimony relates to general characteristics only. It is proper, for instance, to elicit an opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault.

People v. Gillispie, 767 P.2d 778, 780 (Colo.App.1988) (citation omitted).

Here, Tillery points to the following statements made by the interviewer during her recorded interview with the victim, which were admitted over his objection:

• An explanation of the rules of the interview-including that the victim had to tell the truth;
• Responding to the victim's answers as “weird” or as needing “more explanation”;
• Saying in response to the victim, “I have to tell you something, the answer does not make sense to me.”

But these statements do not express an opinion on the victim's truthfulness or sincerity. Tillery failed to object on the basis that the comments improperly coached the victim, and therefore we do not address that possibility.

2. Expert Testimony

Because the prosecution did not qualify the interviewer as an expert under CRE 702, abuse of discretion turns on whether admission of any opinions in her testimony was proper under CRE 701. See People v. Veren, 140 P.3d 131, 136 (Colo.App.2005).

CRE 701 makes lay opinions admissible if they are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Such testimony is proper when it ‘results from a process of reasoning familiar in everyday life.’ Veren, 140 P.3d at 137 (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992)). [T]the critical inquiry is whether a witness's testimony is based upon ‘specialized knowledge.’ Veren, 140 P.3d at 137.

Here, Tillery argues that the following testimony was improper under CRE 701:

• The interviewer's qualifications and training;
• The protocols and interview techniques used by the interviewer;
• The interviewer's opinion that younger children are prone to suggestibility more so than older children.

The interviewer's qualifications, training, and interview protocols and techniques do not constitute opinion testimony. Certain basic information about a subject may fall within the scope of lay opinion testimony, even if more detailed discussion of the same area would require specialized knowledge. Veren, 140 P.3d at 139 (concluding that certain basic information about drugs may properly fall within the scope lay opinion testimony, although a police officer's testimony regarding the amount of pseudoephedrine needed to manufacture methamphetamine required specialized knowledge).

Further, unlike the specific training and specialized knowledge that qualifies a witness as an expert, here the interviewer's opinion about the suggestibility of younger children was based on her years of observing them, not on a “process of reasoning that can be mastered only by specialists in the field.” People v. Rincon, 140 P.3d 976, 983 (Colo.App.2005); see also Farley v. People, 746 P.2d 956, 958 (Colo.1987) (counselor employed by the Victim Services Unit of the police department properly testified as a lay witness that the victim's reactions were very consistent with her being a rape victim); People v. Rogers, 800 P.2d 1327, 1330 (Colo.App.1990) (permitting a detective to testify under CRE 701 about the range of responses and demeanor demonstrated by child sexual assault victims).

Accordingly, we conclude that the trial court did not err by admitting the testimony of the forensic interviewer.

II. Trial Errors
A. Motion for Mistrial

Tillery next contends the trial court erred by denying his motion for a mistrial after the victim testified about...

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