COLORADO COURT OF APPEALS
September 5, 2019
2019 COA137. No. 15CA1517. People v. Ojeda.
Challenge for Cause
A jury found defendant guilty of first degree murder, second degree kidnapping, and first degree sexual assault.
On appeal, defendant contended that the trial court erred in denying his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), when the prosecutor removed R.P., a prospective Hispanic juror, from the venire. When a party raises a Batson challenge, the trial court must conduct a three-step analysis to assess the claim of racial discrimination. First, the opponent of the peremptory strike must allege a prima facie case showing that the striking party struck the prospective juror on the basis of race. Next, the burden shifts to the striking party to provide a race-neutral explanation for excusing the prospective juror. The opponent is then given the opportunity to rebut the striking party's explanation.
Here, the prosecutor claimed concern with R.P.'s views that the criminal justice system disproportionately affects people of color and those with mental disabilities. In addressing the Batson challenge, the trial court did not explicitly evaluate the prosecutor's proffered reasons for striking R.R Instead, the court sua sponte offered two race-neutral reasons to justify striking R.R The court also failed to recognize that the record refuted most of the prosecutor's proffered excuses. Thus, the trial court erred in denying the Batson challenge.
The judgment of conviction was reversed, and the case was remanded for a new trial.
2019 COA 138. No. 16CA1057. People v. Marx. Criminal Law
Lay Witness Testimony
Rape Shield Statute
False Reports of Sexual Assault-CRE 608.
The accuser alleged that defendant had sexually assaulted her on multiple occasions when she was a teenager. Defendant was convicted of sexual assault on a child (position of trust as part of pattern of abuse), sexual assault on a child (position of trust), and aggravated incest.
On appeal, defendant argued that the trial court erred by allowing improper expert testimony. An expert may not offer a direct opinion on a child victim's truthfulness or an opinion on whether children tend to fabricate sexual abuse allegations. Here, the trial court allowed the prosecutor to introduce expert testimony on the percentage of children and teenagers who fabricate allegations of sexual abuse, the percentage of girls who are sexually abused by family members, and the percentage of women who have been sexually assaulted. The testimony regarding the small percentage of children and teenagers who make false allegations of sexual assault improperly bolstered the victim's credibility. The testimony about the percentages of women and children who are victims of sexual assault was irrelevant and inadmissible to the extent it suggested that the accuser's claims were truthful. Therefore, the trial court erred in permitting this testimony, and the error required reversal of defendant's judgment of conviction.
Defendant also contended that the trial court erred by excluding a neighbor's testimony challenging the accuser's truthfulness. The trial court disallowed the neighbor's testimony that the accuser was "sneaky and attention seeking," had abused animals, and was "untrustworthy." This testimony focused on issues that had nothing to do with credibility, was of questionable relevance, and was not probative of a character for untruthfulness under CRE 608. Therefore, the trial court correctly excluded the neighbor's statements.
Defendant further argued that the trial court erred by rejecting the defense's request under the Rape Shield statute for an evidentiary hearing to determine whether he could introduce at trial evidence of the victim's purported history of falsely accusing classmates of sexual assault. To determine whether a defendant charged with sexual assault may introduce evidence of the victim's alleged history of falsely reporting sexual assaults, the Rape Shield statute requires the defendant to make an offer of proof through a written motion and a supporting affidavit, and if the court finds that the offer of proof is sufficient, the defendant is entitled to an in camera pretrial evidentiary hearing on the admissibility of the evidence of the alleged false reporting. Here, defendant made a sufficient offer of proof regarding the accuser's alleged false reports of sexual assault, including referencing multiple witnesses who would testify as to those false reports and the school's findings that the victim had previously made false allegations of sexual assault. Thus, the facts described in the affidavit sufficiently established that defendant could demonstrate at an evidentiary hearing, by a preponderance of the evidence, the falsity of the accuser's multiple previous allegations of sexual assault, and the trial court erred.
The judgment was reversed, and the case was remanded with directions.
2019 COA 139. No. 17CA0040. People v. McEntee.
Unlawful Sexual Contact.
Defendant was convicted of unlawful sexual contact and sentenced to sex offender intensive supervised probation for an indeterminate term of 10 years to life.
On appeal, defendant contended that the evidence was insufficient to support his conviction for unlawful sexual contact under CRS § 18-3-404(1.5), arguing that the statute applies to sexual contact involving a third person other than the victim and the defendant. Specifically, he contended that because the State did not prove that defendant induced or coerced the victim to engage in sexual contact with another person for defendant's own sexual gratification, the conviction cannot stand. The phrase "another person" as used in CRS § 18-3-404(1.5) is ambiguous. The Court of Appeals construed it to be viewed from the perspective of the victim, so the perpetrator is "another person" in relation to the victim. Consequently, CRS § 18-3-404(1.5) does not require the participation of an additional person beyond the victim and the defendant. Therefore, sufficient evidence supported defendant's conviction. The judgment was affirmed.
2019 COA 140. No. 18CA0032. People v.
Vidauri. Theft of Public Benefits
Failure of Proof-Class 4 Felony
Proof of Amount of Benefits Overpayment
Defendant submitted three applications for Medicaid and Child Health Plan Plus benefits to the Garfield County Department of Human Services (Department) between 2008 and 2011. The applications contained inaccurate household income information. Based on her applications, defendant and her children received $31,417.65 in benefits.
In 2016, a Department fraud investigator questioned defendant about her financial information. The documentation produced showed that defendant had owned her own housecleaning business and her husband owned his own electrical contracting business during the entire time defendant received benefits, and each owned significant unreported property. At trial, the fraud investigator opined that the applications did not accurately describe defendant's financial state, but she was unable to opine on the amount of benefits defendant would have been entitled to had her application been accurate, nor that the inaccurate application forfeited all rights to benefits. Defendant was convicted of one count of class 4 felony theft-$20,000 to $100,000 and three counts of forgery.
On appeal, defendant argued that there was insufficient evidence to support a conviction because the prosecution failed to present evidence sufficient to prove her intent or to establish the value of the purportedly stolen benefits. As to her intent, ample evidence created a reasonable inference that defendant understood the generally inverse relationship between income and eligibility. As to the value, the prosecution was required to prove how much defendant was overpaid. However, while the evidence established the total value of benefits defendant received, it did not show the value she would have been entitled to had she fully disclosed her household income. Further, the prosecution did not present sufficient evidence to prove that the overpayment amount exceeded $20,000. But because there was sufficient evidence for a reasonable juror to determine that defendant obtained some benefits by deceit, the conviction need only be downgraded to a class 1 petty offense, which is the only grade of theft that does not require proof of value.
Defendant also argued as to the forgery counts that the prosecution failed to present sufficient evidence to prove either that she intended to defraud the Department or that any false...