The People of the State of Colorado v. Israel Heredia-Cobos

¶ 1 Defendant, Israel Heredia-Cobos, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault on a child. One of the issues he raises is whether the

district court abused its discretion in allowing a forensic interviewer

to testify that the child victim, Y.P., didn’t appear to have been

coached as to what to say during an interview. Though such

testimony is usually inadmissible, we conclude that in this case the

defense opened the door to the forensic interviewer’s testimony by

challenging the victim’s statements on the basis that she had

fabricated them, at least in part, because of coaching by her

relatives and others. We also reject defendant’s other contentions,

and therefore we affirm.

I. Background

¶ 2 Defendant is Y.P.’s great uncle. When Y.P. was nine years old,

she spent the night at defendant’s home with other family

members. While she was playing on the trampoline with her

cousins, defendant came outside and said that cake was being

served. After Y.P.’s cousins went inside the house, defendant

pushed Y.P. down, got on top of her, and touched her breast. He

2

then tried to put his hand down her pants, but Y.P. pushed him off

and ran inside.

¶ 3 Y.P. reported the assault just over four years later after a

classmate told her that she had been raped by her father. The

People charged defendant with a single count of sexual assault on a

child.

II. Discussion

¶ 4 Defendant contends that the district court abused its

discretion by (1) allowing the forensic interviewer who had

interviewed Y.P. to testify that Y.P. didn’t show any signs of having

been coached and (2) allowing evidence of his prior acts of a sexual

nature involving other relatives in violation of CRE 404(b).

A. Witness Testimony Regarding Coaching

1. Preservation and Standard of Review

¶ 5 The parties agree that defendant preserved this issue.

¶ 6 We review the district court’s evidentiary rulings for an abuse

of discretion. People v. Faussett, 2016 COA 94M, ¶ 33. To

constitute an abuse of discretion, the district court’s evidentiary

ruling must have been manifestly arbitrary, unreasonable, or

3

unfair, or based on a misunderstanding or misapplication of the

law. Id.

2. Analysis

¶ 7 The prosecutor called Lisa Tani, a forensic interviewer, to

testify as an expert about her interview of Y.P. (Defense counsel

didn’t object to the prosecutor’s request that Ms. Tani be allowed to

give expert testimony.)

¶ 8 Ms. Tani initially testified about how she interviews children

generally. The prosecutor asked her whether “there are certain

things that you are looking for or precautions that you are taking

throughout the interview?” Ms. Tani replied, “So while we interview

children we assess for coaching, suggestibility, . . . how trauma may

affect their memory, . . . development, those type of things.”

¶ 9 The prosecutor later returned to the subject of coaching.

Q: Okay. You also said that you’re looking

for signs of suggestibility, um, and you

mentioned coaching, signs of coaching.

What signs of coaching are you talking

about?

A: So if a child has been coached, which

typically you will see a child being

coached under the age of 10, they are

usually coached on that specific event.

So a caregiver — they might overhear

4

someone talking about an event, so they

will come in and just tell you about that

event. Typically, they don’t have the

sensory detail that we look for, the

peripheral details, and they have limited

information regarding that event.

¶ 10 Ms. Tani also testified that she doesn’t assess the child’s

credibility, but when asked what she assesses during an interview

she said, “I will assess on coaching. If I feel that . . . they were

being suggestive, . . . I will come up and talk to the parents.”

¶ 11 The prosecutor then turned to Ms. Tani’s interview of Y.P.

Q: Did you — and I’m not asking you to

opine on her credibility, but did you see

any indication throughout that interview

of the concerns that you have just talked

about?

Defense counsel objected that the question called for Ms. Tani to

comment on Y.P.’s credibility. The prosecutor argued that such

testimony wasn’t an opinion about credibility and pointed out that

the defense had brought up “numerous times” at trial that Y.P. had

made up the allegations “because she overheard gossip or . . . was

somehow trying to fit in as a peer at school.” So, the prosecutor

argued, the testimony was relevant to rebut that theory. The court

5

overruled the objection, reasoning that “whether signs of coaching

were there [doesn’t go] directly to credibility or truthfulness.”

¶ 12 The prosecutor then continued questioning Ms. Tani about

whether Y.P. appeared to have been coached.

Q: Okay. Ms. Tani, as I said, um, you can’t

opine on the credibility of the child or

whether you believed the child or things

like that. What I’m asking you is based

on the things that you just talked about

that you’re assessing during an interview,

did you see any indications of coaching

during this interview?

A: No, I did not.

Q: Or that things had been suggested?

A: No, I did not.

Q: You also talked about, um, looking for

sensory details and peripheral details

throughout the interview. Did you

observe [Y.P.] make details that are

peripheral in this case?

A: Yes, I did.

¶ 13 Ms. Tani then testified as to the various details Y.P. told her

about during the interview, such as whom she was with, what she

was doing (playing on the trampoline), the smell of defendant’s

breath, and how cold it was outside.

6

¶ 14 It doesn’t appear that defendant challenges Ms. Tani’s

testimony about how she interviews children, including that she

looks for signs of coaching. Instead, he focuses on Ms. Tani’s

testimony that she didn’t see any indications that Y.P. had been

coached. We conclude that although such testimony ordinarily is

improper (because it’s tantamount to vouching for the child’s

credibility), in this case the testimony was admissible to rebut

defendant’s theory of defense. See People v. Quintana, 882 P.2d

1366, 1375 (Colo. 1994) (erroneous admission of evidence under a

rule of evidence not reversible where evidence was admissible for a

different reason); People v. Pernell, 2014 COA 157, ¶ 36 (an

appellate court may affirm a district court’s ruling allowing evidence

on any ground supported by the record) (cert. granted on other

grounds Aug. 31, 2015).

¶ 15 “[E]xperts may not offer their direct opinion on a child victim’s

truthfulness or their opinion on whether children tend to fabricate

sexual abuse allegations.” People v. Wittrein, 221 P.3d 1076, 1081

(Colo. 2009). Expert testimony regarding typical behavior of abused

children is admissible only if it addresses “general characteristics

evidence which (1) relates to an issue apart from credibility and (2)

7

only incidentally tends to corroborate a witness’s testimony.”

People v. Cernazanu, 2015 COA 122, ¶ 20.

¶ 16 Although Ms. Tani didn’t explicitly say that Y.P. was being

“truthful,” by opining that Y.P. didn’t show any indication of having

been coached, she conveyed the impression that she thought Y.P.

was being truthful. Ordinarily, such testimony shouldn’t be

allowed. See People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999)

(error to admit social worker’s testimony that she felt the child

sexual abuse victim “was sincere” in her forensic interview); People

v. Snook, 745 P.2d 647, 649 (Colo. 1987) (social worker’s testimony

that children tend not to fabricate stories of sexual abuse was

inadmissible because it went to the witness’s truthfulness on a

particular occasion); Cernazanu, ¶¶ 16-23 (district court erred in

allowing mother’s testimony that child victim didn’t engage in her

typical “lying” behavior when she reported sexual assault by the

defendant; such testimony “necessarily implied” that mother

thought the victim hadn’t lied); People v. Bridges, 2014 COA 65,

¶ 16 (interviewer’s testimony that child victims “had not been

coached constituted conclusions about their truthfulness in their

respective interviews” and was therefore inadmissible opinion).

8

¶ 17 We aren’t persuaded to the contrary by the People’s assertion

that testifying that a child didn’t show signs of having been coached

is not the same as testifying that the child hasn’t been coached, and

therefore isn’t an assessment of the child’s credibility. The subtle

distinction urged by the People is likely to be lost on ordinary

jurors; rather, ordinary jurors, putting two and two together, are

likely to glean from such testimony that the interviewer believed the

child hadn’t been coached.

¶ 18 Nor are we persuaded by the People’s argument that Ms.

Tani’s testimony was admissible under CRE 608. While CRE 608(a)

sometimes allows a witness to present evidence of another witness’s

character for truthfulness, it doesn’t allow a lay or expert witness to

testify that “another witness was telling the truth on a specific

occasion.” Wittrein, 221 P.3d at 1081 (emphasis added); see also

People v. Lopez, 129 P.3d 1061, 1066 (Colo. App. 2005) (“[A]

witness’s or prosecutor’s personal opinion on the credibility of

witnesses intrudes upon the province of the jury to make credibility

determinations.”). Because Ms. Tani testified to Y.P.’s truthfulness

on a specific occasion (during her interview), and not generally, the

testimony at issue wasn’t admissible under CRE 608. See People v.

9

Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (“CRE 608(a) would have

permitted the prosecuting attorney to elicit on direct examination of

[the witness] her opinion only as to [the child victim]’s general

character for truthfulness, but not, as here, the [witness]’s opinion

that [the child victim] was speaking the truth on a particular

occasion.”).

¶ 19 But that doesn’t end our analysis concerning admissibility.

For in this case, the record shows that defendant opened the door

to the otherwise inadmissible testimony.

¶ 20 A party may open the door to otherwise inadmissible evidence

by presenting incomplete evidence on a subject. “The concept of

‘opening the door’ represents an effort by courts to prevent one

party in a criminal trial from gaining and maintaining an unfair

advantage by the selective presentation of facts that, without being

elaborated or placed in context, create an incorrect or misleading

impression.” People v. Murphy, 919 P.2d 191, 195 (Colo. 1996)

(citing People v. Miller, 890 P.2d 84, 98-99 (Colo. 1995)). Once a

party opens the door, the opponent may inquire into the otherwise

inadmissible matter. Golob v. People, 180 P.3d 1006, 1012-13

(Colo. 2008) (district court erred by allowing the People’s expert to

10

testify extensively on the defense expert’s conclusions but then

unduly limiting the defense expert’s testimony on the subject).

¶ 21 As defendant essentially concedes,1 at trial he relied on

theories that (1) Y.P.’s family members coached her on the details of

the sexual assault and (2) Y.P. fabricated the allegation when she

saw that her friend had received attention at school after reporting

that she had been sexually abused.

1 Defendant’s reply brief says,

Defendant argued that, after K.R. told Y.P. that

she had been raped by her father, Y.P.

responded by telling K.R. “I was raped too, to

make her feel better.” When K.R. herself told a

school counselor what Y.P. had said, and when

the counselor called Y.P.’s parents, Y.P. was

unable to back out and had to continue with

her story. Defense counsel likened Y.P.’s

situation to a freight train that had started to

roll downhill, a train that Y.P. had become

unable to stop, even though she at times tried

“to put the brakes on this train that’s rolling

downhill.” In reluctantly maintaining her story,

defense counsel argued, Y.P. at times may have

been influenced by other family members, and

may have adopted certain details they

suggested.

(Emphasis added.)

11

¶ 22 Defense counsel initially presented these theories in opening

statement:

[Y.P.’s friend] received attention in that school

. . . [a]nd so, lo and behold, they get this house

just chuck full of people who are going to

testify here, and they are all in that house

together just waiting. And, of course, I’ll ask

them, you know, [w]ere you talking about the

case? And I suspect they will say, [n]o, we

weren’t talking about the case, but they are all

sitting in that house waiting for [the detective]

to come down to talk to them.2

¶ 23 And defense counsel pursued these theories throughout trial.

During cross-examination of Y.P., defense counsel asked her if she

had practiced her testimony with the district attorney, if the women

in her family liked to gossip about other family members, what

“bad” things she had heard defendant had done, and whether she

had talked with other family members about the incident just

before she was interviewed. He also elicited Y.P.’s testimony that

her cousin had reminded her of various details of the day of the

2 Other divisions of this court have held that defense counsel’s

remarks in opening statement may open the door to otherwise

inadmissible evidence. People v. Pernell, 2014 COA 157, ¶ 40 (cert.

granted Aug. 31, 2015); People v. Davis, 312 P.3d 193, 196-97

(Colo. App. 2010), aff’d on other grounds, 2013 CO 57. Of course,

in this case, defense counsel also raised the coaching accusation

through cross-examination of witnesses.

12

incident. And he repeatedly underscored inconsistencies in Y.P.’s

reports (including why the children had been called inside

immediately prior to the assault, the nature and extent of the

touching by defendant during the assault, and that none of the

three cousins Y.P. testified to telling immediately after the assault

could remember such a conversation). He specifically asked each of

Y.P.’s cousins if numerous family members were together in the

house before the detective came to talk to them. All of this was

clearly intended to suggest to the jurors that Y.P. had fabricated her

allegations, at least partly as a result of coaching by family

members and the district attorney. And all of this occurred before

Ms. Tani testified.

¶ 24 Courts in other jurisdictions have held that by challenging a

child witness’s credibility by suggesting that the witness had been

coached, the defense opens the door to testimony that the witness

didn’t appear to have been coached. Sampson v. State, 38 N.E.3d

985, 991-92 (Ind. 2015) (testimony by an interviewer as to whether

a child witness showed signs of having been coached is admissible

if the defendant opens the door by suggesting that the child had

been coached); State v. Champagne, 305 P.3d 61, 67 (Mont. 2013)

13

(expert’s testimony that she didn’t see any signs that the child

victim had been coached was admissible where the defendant had

implied that the child had been coached); State v. Baymon, 446

S.E.2d 1, 4 (N.C. 1994) (“[D]efense counsel . . . attempted to leave

the impression that the victim had been coached by her relatives or

social workers involved in the case. This attempt opened the door

for the State on redirect to reestablish the reliability of the

videotaped interview by proffering [the witness]’s testimony that she

did not perceive that the victim had been told what to say or

coached.”); see also People v. Jefferson, 2014 COA 77M, ¶ 39

(“Unless defendant were to somehow ‘open the door,’ the

prosecution’s expert should not opine that a forensic interviewer’s

job is to determine whether or not a child is telling the truth.”),

aff’d, 2017 CO 35; cf. Venalonzo v. People, 2017 CO 9, ¶ 44 (by

asking a detective whether, in his experience, children make things

up, defense counsel opened the door to the detective’s otherwise

inadmissible testimony that, in his experience, children only make

up trivial stories, not serious accusations). We agree with those

courts’ straightforward application of the opening the door

principle. And so we conclude that defense counsel opened the

14

door to Ms. Tani’s testimony by suggesting that Y.P. had been

coached.

¶ 25 In sum, though we disagree with the district court’s reason for

allowing Ms. Tani’s testimony, we conclude that her testimony was

nonetheless admissible. Therefore, the district court didn’t abuse

its discretion.

B. Prior Acts

¶ 26 Over defense counsel’s objection, the district court allowed the

prosecutor to introduce evidence of defendant’s prior sexually

related acts involving F.V. (Y.P.’s mother), E.V. (defendant’s niece),

and N.C. (also defendant’s relative). The court told the jurors they

could consider the evidence only as it served to refute a defense of

recent fabrication or of impossibility; as it bore on defendant’s

mental state, knowledge, or intent; as it tended to show absence of

mistake or accident; or as it tended to show defendant acted “for

the purpose of sexual arousal, gratification, or abuse.”

Defendant contends that these other acts were too dissimilar to his

alleged assault of Y.P. to be admissible under the applicable rule

and statute. We don’t agree.

15

1. Preservation, Applicable Law, and Standard of Review

¶ 27 The parties agree that defendant preserved this issue.

¶ 28 CRE 404(b) prohibits the admission of evidence about a

defendant’s prior acts when offered to show his bad character and

that he acted in conformity with that character. Kaufman v. People,

202 P.3d 542, 552 (Colo. 2009). But other act evidence is

admissible for other reasons, including to show “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” CRE 404(b); see also § 16-10-

301(3), C.R.S. 2017 (in sexual offense prosecutions, the People may

introduce other act evidence for similar purposes).

¶ 29 Before admitting evidence under CRE 404(b) or section 16-10-

301, the court must determine that (1) the evidence relates to a

material fact; (2) the evidence is logically relevant; (3) the logical

relevance is independent of the intermediate inference that the

defendant was acting in conformity with his bad character; and (4)

the evidence has probative value that is not substantially

outweighed by the danger of unfair prejudice. Kaufman, 202 P.3d

16

at 552; People v. Snyder, 874 P.2d 1076, 1078 (Colo. 1994); People

v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).3

¶ 30 Because the district court has substantial discretion in

determining whether other act evidence is admissible, we won’t

overturn the court’s decision unless it’s manifestly arbitrary,

unreasonable, or unfair. Kaufman, 202 P.3d at 553. And, because

defendant preserved this issue, if we determine that the court

abused its discretion, we review any error for harmless error.

Yusem v. People, 210 P.3d 458, 469 & n.16 (Colo. 2009); People v.

Munoz, 240 P.3d 311, 319 (Colo. App. 2009). An error is harmless

unless there is a reasonable probability that it contributed to a

defendant’s conviction by substantially influencing the verdict or

impairing the fairness of the trial. Yusem, 210 P.3d at 469; People

v. Rincon, 140 P.3d 976, 979-80 (Colo. App. 2005).

3 The court must also determine that the defendant, more likely

than not, committed the other act. Kaufman v. People, 202 P.3d

542, 552-53 (Colo. 2009). Defendant doesn’t raise any issue about

this requirement.

17

2. Analysis

a. Acts Involving F.V. and N.C.

¶ 31 F.V. testified that when she was twenty-six years old, she was

in a car with defendant when he touched her thigh and told her he

“could take her to heaven” like her husband could not.

¶ 32 N.C. testified that she had lived with defendant briefly when

she was nineteen years old. On multiple occasions, while family

members were nearby, defendant approached her from behind,

grabbed her, and tried to kiss her. She also testified that on one

occasion defendant grabbed her from behind, touched her breasts

and “below her stomach,” and pressed his erect penis against her.

¶ 33 This evidence related to the material fact of whether defendant

“knowingly subject[ed] another not his or her spouse to any sexual

contact.” § 18-3-405(1), C.R.S. 2017 (defining sexual assault on a

child); see also Spoto, 795 P.2d at 1318; People v. Villa, 240 P.3d

343, 351 (Colo. App. 2009).

¶ 34 It also met the second prong of the Spoto test. Evidence is

logically relevant if it has any tendency to make the existence of a

material fact more or less probable than it would be without the

evidence. CRE 401; see Yusem, 210 P.3d at 463. The evidence that

18

defendant physically assaulted F.V. and N.C., two relatives who

lived with him, made it more probable that defendant’s intent was

to sexually assault another female relative at his home. People v.

Martinez, 36 P.3d 154, 159 (Colo. App. 2001) (other act evidence

was logically relevant because “it had a tendency to make [the]

defendant’s intent to commit [the charged] crimes and the victim’s

lack of consent or lack of recent fabrication more probable with the

evidence than without it”). And the other acts evidence was also

relevant to rebut defendant’s theory of defense that Y.P. fabricated

the allegation. See id.; see also People v. Orozco, 210 P.3d 472,

477-78 (Colo. App. 2009); People v. Victorian, 165 P.3d 890, 893

(Colo. App. 2007).

¶ 35 We are not persuaded by defendant’s argument that F.V. and

N.C.’s ages or sexual maturity render these prior acts too dissimilar

to the act alleged in this case to make them relevant. “CRE 404(b)

contains no separate requirement of similarity.” People v. Rath, 44

P.3d 1033, 1041 (Colo. 2002). Although similarity may be

necessary to give the evidence probative force if admitted for certain

purposes, see id. at 1042, “it is not essential that the means of

committing the other crimes replicate in all respects the manner in

19

which the crime charged was committed.” People v. Garner, 806

P.2d 366, 375 (Colo. 1991). In any event, the differences in the

ages of the victims are offset by other similarities of the acts —

specifically, that defendant sexually assaulted female family

members, and did so in similar ways.4

¶ 36 We also conclude the acts have relevance aside from any

inference of propensity. This prong of the Spoto test doesn’t

demand the absence of the propensity inference, but requires only

that the evidence be logically relevant for a reason independent of

that inference. Snyder, 874 P.2d at 1080; Villa, 240 P.3d at 352.

As discussed, the evidence was probative of defendant’s intent and

his method of seeking sexual gratification from women to whom he

had access because they were relatives who lived or stayed in his

home. It was also probative to refute defendant’s claim that Y.P.

fabricated the allegation.

¶ 37 Lastly, we must consider whether the probative value of the

evidence was substantially outweighed by the danger of unfair

prejudice. In assessing the probative value of the evidence, we

4 And as to N.C., defendant allegedly assaulted her while she was

near other relatives, just as Y.P. alleged in this case.

20

must evaluate the evidence’s “incremental” probative value — what

weight the evidence adds to the prosecution’s case. Rath, 44 P.3d

at 1041. In doing so, we weigh “‘the logical force of the evidence

and the proponent’s need for the evidence,’ in light of other

available evidence.” Id. (quoting Martin v. People, 738 P.2d 789, 794

(Colo. 1987)). We then must balance the evidence’s incremental

probative value against the danger of unfair prejudice, “afford[ing]

the evidence the maximum probative value attributable by a

reasonable fact finder and the minimum unfair prejudice to be

reasonably expected.” Id. at 1043.

¶ 38 Prior act evidence in sexual assault cases often has the

potential for unfair prejudice. But we’re mindful that the General

Assembly has declared that “normally the probative value of [other

sexual misconduct] evidence will outweigh any danger of unfair

prejudice, even when incidents are remote from one another in

time.” § 16-10-301(1).

¶ 39 Given that Y.P.’s testimony was the only direct evidence of

defendant’s guilt, the other act evidence was especially relevant.

See Rath, 44 P.3d at 1043 (“[W]here disputed testimony of the

victim is the only direct evidence of the commission of the guilty

21

act, additional evidence that is probative of that fact may have

particular ‘marginal’ or ‘incremental’ probative value.”). And while

there was some potential for unfair prejudice, that potential didn’t

outweigh the evidence’s substantial probative value. See People v.

Mata, 56 P.3d 1169, 1173-74 (Colo. App. 2002) (probative value of

evidence that the defendant digitally penetrated and fondled his

daughter on multiple occasions, which was admitted to show intent

and to refute a defense of fabrication by the victim, outweighed

danger of unfair prejudice); People v. Duncan, 33 P.3d 1180, 1183-

84 (Colo. App. 2001) (evidence that the defendant previously took

three young men to secluded areas to have sexual contact with

them would not “inflame the emotions of the jurors to reach an

irrational decision”).5

¶ 40 Therefore, we conclude that the district court didn’t abuse its

discretion by admitting the evidence of defendant’s acts involving

F.V. and N.C.

5 We also observe that the court provided appropriate limiting

instructions prior to the introduction of the evidence. See, e.g.,

People v. Roy, 723 P.2d 1345, 1348 (Colo. 1986) (“In the absence of

a showing to the contrary, we presume the jury understood and

followed the instructions.”).

22

b. Acts Involving E.V.

¶ 41 The evidence regarding defendant’s acts involving E.V. was

somewhat different from that of the acts involving F.V. and N.C.

E.V., defendant’s niece, lived with him when she was seventeen

years old. She testified that on four or five occasions, defendant

masturbated while standing in the bedroom where she and

defendant’s two daughters were sleeping.

¶ 42 Unlike defendant’s prior acts involving F.V. and N.C., he did

not touch E.V. But his prior acts involving E.V. shared some

similarities with the assault alleged by Y.P. Specifically, both

involved female family members in his house, and E.V.’s age was

closer to Y.P.’s than was F.V.’s or N.C.’s. On balance, the acts

involving E.V. were as relevant as those involving F.V. and N.C.,

and the evidence of those acts was no more potentially prejudicial

than the evidence of the acts involving F.V. and N.C. So this

evidence likewise satisfied the four-part Spoto test.

¶ 43 But even if we assume the district court erred in allowing this

evidence, we conclude that any error was harmless. The harmless

error analysis requires “an inquiry into whether, viewing the

evidence as a whole, the contested evidence substantially

23

influenced the verdict or affected the fairness of the trial

proceedings.” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).

We will disregard an evidentiary error if there is no “reasonable

possibility that it contributed to the jury’s guilty verdict.” Id.

¶ 44 Because the district court properly admitted evidence of

defendant’s other prior acts involving family members F.V. and

N.C., we conclude that there was no reasonable possibility that, had

the evidence about E.V. been excluded, the outcome of the case

would have been different.

¶ 45 The judgment is affirmed.