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People v. Daley.

2021 COA 85. No. 17CA1328. Sexual Assault on a Child by One in a Position of Trust—Pattern of Sexual Abuse—Aggravated Incest—Internet Sexual Exploitation of a Child—Contributing to the Delinquency of a Minor—Constitutional Right to be Present at Trial—Jurors Sleeping—Motion for New Trial—Testimony.

June 24, 2021

Defendant is the victim’s mother. Defendant arranged sexual encounters between the victim and men defendant met online when the was victim was 14 years old and 17 years old. Defendant also engaged in sexual acts with the victim. Defendant was found guilty of sexual assault on a child by one in a position of trust and as part of a pattern of sexual abuse, four counts of aggravated incest, internet sexual exploitation of a child, four counts of sexual exploitation of a child, and contributing to the delinquency of a minor.

On appeal, defendant argued that the trial court violated her constitutional right to be present at trial by proceeding with trial after she was hospitalized for an apparent suicide attempt. Here, defendant attended the first four days of trial. She then took an overdose of narcotics, which resulted in a medical emergency that rendered her unfit to return to trial the fifth day. This, along with the note she left, demonstrated that she intended to absent herself from trial. Further, the court carefully considered defendant’s interest in attending the trial against factors weighing in favor of proceeding with the trial. Therefore, the trial court did not abuse its discretion in finding that defendant was voluntarily absent from trial and proceeding in her absence.

Defendant also contended that the trial court erred by denying her motion for a new trial, which was based on allegations that several jurors had fallen asleep during trial. However, the record supports the trial court’s finding that no jurors actually fell asleep during trial. Therefore, the court did not err in denying the motion.

Defendant further argued that the trial court erred by refusing to instruct the jury on the unreliability of child hearsay. Because no testimony was admitted under the child hearsay statute, the court did not err.

Defendant also contended that the trial court erred by allowing the prosecutor to ask a detective a series of questions about whether the victim’s trial testimony was consistent with her out-of-court statements. The trial court abused its discretion by allowing the detective to provide an opinion on the victim’s truthfulness, which usurped the jury’s function. Although it was error to admit this testimony, any error was harmless because the evidence against defendant was overwhelming and there was no reasonable possibility that the error contributed to the convictions.

The Court of Appeals also found three other challenged evidentiary rulings by the trial court to be proper.

The judgment was affirmed.

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

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