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People v. Vanderpauye.

2021 COA 121. No. 18CA0792.  Sexual Assault—Self-Serving Hearsay—Excited Utterance—Cold Expert Testimony—Jury Instruction—Intoxication.

September 9, 2021

After a night of heavy drinking with friends, the victim went home with defendant, engaged in affectionate kissing, and fell asleep on defendant’s bed. When she woke up, defendant was having sexual intercourse with her. The victim yelled, “[W]hat are you doing? You’re raping me.” The parties agree that defendant responded, “I thought you said I could do anything to you.” The victim pushed defendant away, ran from the apartment, and returned home. A jury convicted defendant of sexual assault (victim physically helpless).

On appeal, defendant argued that the trial court reversibly erred by refusing to admit his hearsay statement, “I thought you said I could do anything to you.” There is no per se rule prohibiting the admission of a criminal defendant’s self-serving hearsay, which is admissible subject to CRE 403 if the statement satisfies a hearsay exception. Defendant’s statement here was admissible under the excited utterance hearsay exception, so the trial court erred. Further, because the victim’s lack of consent was an element of the charge for which defendant was convicted and defendant’s statement directly related to that element, the error was not harmless.

Defendant also challenged the trial court’s admission of cold expert testimony about sexual assault dynamics. Here, the trial court made the necessary CRE 702 findings without a hearing, so it did not abuse its discretion in denying defendant’s request for a hearing under People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). However, the cold expert testified that it was a “myth” that sexual assault is a mistake or miscommunication; this testimony went well beyond opinions regarding the typical responses of sexual assault victims. Accordingly, on retrial, the court must, on timely objection, limit the expert testimony to opinions that do not improperly bolster the credibility of any witness and that fit the facts supported by trial evidence.

Defendant further argued that the trial court reversibly erred by refusing to give his tendered intoxication instruction. Here, the tendered instruction was argumentative and confusing, and the trial court correctly instructed the jury on the elements of the offense. Therefore, the trial court did not abuse its discretion.

The judgment of conviction was reversed and the case was remanded for a new trial.

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

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