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People v. Collins.

2021 COA 18. No. 16CA2170. Criminal Law—Sexual Assault on a Child—Testimony—Court Facility Dog—Confrontation Clause—Expert Testimony.

February 18, 2021

Defendant sexually abused T.M. when she was between the ages of 3 and 5. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in a position of trust.

On appeal, defendant contended that the court abused its discretion by allowing T.M. to testify. He argued that (1) the trial court erroneously considered previously recorded forensic interviews of T.M. while assessing her competence, and (2) the court’s factual findings regarding T.M.’s competence aren’t supported by the record. The court conducted a competency hearing for T.M., who was then 6 years old. When a challenge to competence is based on a witness’s youth or immaturity, a demonstration of competence earlier is relevant. Here, the recordings of interviews of T.M. from 2013 and 2014 bear directly on whether T.M. could describe events in age-appropriate language. Therefore, the trial court didn’t err by considering the forensic interviews. Further, the record demonstrates that T.M. could properly answer questions about various facets of her life and that she did so in age-appropriate language. Accordingly, the trial court didn’t abuse its discretion by finding T.M. competent to testify at trial.

Defendant also argued that the trial court violated his confrontation rights when it allowed T.M. to have a court facility dog at her feet while she testified during trial. However, defendant’s right to confrontation doesn’t include a right to impose discomfort on an accusing witness, and the trial court’s findings that all confrontation requirements were met is supported by the record. Accordingly, the trial court didn’t abuse its discretion by allowing T.M. to testify with the court facility dog at her feet.

Defendant further argued that the trial court erred by admitting portions of a therapist’s expert testimony that he contends improperly bolstered T.M.’s testimony. Here, the prosecutor’s use of a hypothetical was too closely tailored to the facts of the case and was thus improper, but the therapist’s answer conformed to the rules guiding expert testimony. The prosecutor’s questions regarding a child’s sophistication to lie about having been sexually assaulted were also improper, but the error was harmless because the testimony didn’t substantially influence the verdict or affect the fairness of the proceedings.

The Court of Appeals agreed with defendant’s argument that the mittimus must be amended to reflect the crime of conviction.

The judgment and sentence were affirmed and the case was remanded for correction of the mittimus.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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