     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.

                                                                   SUMMARY
                                                                 April 5, 2018

                                2018COA47

No. 15CA1175 People v. Short-15CA1175 — Evidence —
Remainder of or Related Writings or Recorded Statements —
Hearsay Exceptions — Attacking and Supporting Credibility of
Declarant

       Declining to follow People v. Davis, 218 P.3d 718 (Colo. App.

2008), a division of the court of appeals holds that a defendant’s

exculpatory statement to the police admissible under the rule of

completeness is not subject to impeachment under CRE 806.

Accordingly, the division determines that it was error, albeit

harmless, for the trial court to conclude that the defendant’s

statement, if admitted, was subject to impeachment under CRE

806.

       The division also rejects the defendant’s contention that

reversal is required because three witnesses improperly bolstered

the credibility of the victim. Finally, the division agrees that the
trial court incorrectly entered separate convictions for sexual

assault on a child and sexual assault on a child-pattern of abuse.

Because the division determines that the pattern of abuse count

acts only as a sentence enhancer, one count has to be vacated.
COLORADO COURT OF APPEALS                                      2018COA47



Court of Appeals No. 15CA1175
Mesa County District Court No. 13CR1151
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Roger Lee Short,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                   Division II
                         Opinion by JUDGE DAILEY
                           Hawthorne, J., concurs
                         Welling, J., specially concurs

                           Announced April 5, 2018


Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Roger Lee Short, appeals the judgment of

 conviction and sentence entered on a jury’s verdicts finding him

 guilty of sexual assault on a child and sexual assault on a child-

 pattern of abuse. We affirm in part, vacate in part, and remand

 with directions.

                           I.   Background

¶2    While driving with her Grandmother L in July 2013, the

 victim, an eight-year-old girl, saw Short napping in the park. The

 victim began to yell, while ducking down in her booster seat in

 order to hide from him. When Grandmother L asked what was

 wrong, the victim responded that she hated Short and was going to

 stab him someday because he had been “touching” her and

 “messing with” her. Upon further questioning, the victim said Short

 had been touching her “down there,” pointing to her vaginal area;

 had masturbated in front of her while the rest of her family had

 gone outside to smoke; and had told her he would kill her if she

 ever told anyone. Later, the victim disclosed that Short had also

 digitally penetrated her anus and made her dance naked.

¶3    Short had dated the victim’s other grandmother, Grandmother

 K, for four years, and they often visited the then four-to-seven-year-


                                   1
 old victim at the victim’s home. During this time, Grandmother L

 and the victim’s mother were concerned that the victim was being

 sexually assaulted because she had vaginal redness and swelling,

 experienced behavioral changes, suffered from repeated urinary

 tract infections, and had regressed in her toilet training. Several

 times, they asked the victim if Short or anybody else was sexually

 assaulting her. When Grandmother L asked if “anybody was

 touching her . . . she would say no. But, if [Grandmother L] asked

 her if [Short] was touching her, she would not answer

 [Grandmother L].”

¶4    When questioned by police, Short admitted knowing the

 victim’s family and visiting her home. He also stated that he was

 aware of the victim’s incontinence issues and that “someone’s

 abusing her.”

¶5    The prosecution charged Short with two counts of sexual

 assault on a child and two counts of sexual assault-pattern of

 abuse. One set of sexual assault and sexual assault–pattern of

 abuse charges was based on acts of fondling; the other was based

 on acts of digital penetration.




                                   2
¶6    At trial, the victim testified in some respects inconsistently to

 what she had previously told others. Additionally, she could not

 remember how Short used to “play with her” and if she saw Short

 touch himself. She had difficulty remembering where Short

 touched her, although she eventually indicated that he touched her

 on “her privates.” Consequently, the prosecution introduced

 evidence of the victim’s prior statements and of possible reasons for

 discrepancies or inconsistencies between those statements and the

 victim’s trial testimony.

¶7    In his defense, Short presented two witnesses: (1) the victim’s

 primary care physician, who testified that the victim’s incontinence

 issues were attributable to physical abnormalities and not sexual

 assault; and (2) a clinical psychologist, who testified that

 Grandmother L’s presence during a forensic interview tainted the

 victim’s answers. In closing argument, he asserted that the victim’s

 allegations had been suggested to her by her mother’s and

 Grandmother L’s repeated questions about whether Short had

 sexually abused her, and that the family’s repeated questions gave

 the victim an outlet to assign blame for her incontinence and issues

 at home. This theory was supported, he argued, by the fact that


                                    3
  the victim waited four years to report the abuse, despite having

  been repeatedly questioned about it beforehand.

¶8     The jury acquitted Short of the sexual abuse counts relating to

  the digital penetration allegations. It found him guilty, however, of

  sexual assault on a child and sexual assault on a child-pattern of

  abuse in connection with the fondling allegations. The trial court

  imposed two concurrent sentences on Short; the longer was for nine

  years to life imprisonment in the custody of the Department of

  Corrections.

                        II.    Bolstering Evidence

¶9     Short contends that the testimony of three witnesses

  improperly bolstered the victim’s credibility. We conclude that

  reversal is not warranted.

¶ 10   Short focuses on the testimony of the following witnesses:

           a family therapist who, though unfamiliar with the victim

            or the facts of this case, answered a series of hypothetical

            questions based on the circumstances of the case to

            explain how a child like the victim might (1) not be able

            to disclose in court things such as anal penetration and

            naked dancing after having disclosed them in a clinical


                                     4
            environment; (2) have an extreme visceral reaction upon

            seeing her abuser for the first time in over a year; and (3)

            make inconsistent statements, without that necessarily

            being a sign of fabrication on the child’s part;

           a detective who, remembering the therapist’s testimony

            about it not being uncommon for a child to fail to

            disclose anal penetration, testified that, based on his

            training, experience, and observations of interviews, that

            was the case; and

           Grandmother L, who, in response to a question about

            whether she was concerned that the victim would not be

            honest with her, said, “No. She, she normally would not

            lie about something like that.”

¶ 11   Significantly, Short did not object to any of this testimony.

  Consequently, reversal is not warranted in the absence of plain

  error. See Crim. P. 52(b); People v. Sommers, 200 P.3d 1089, 1095

  (Colo. App. 2008).

¶ 12   It is improper for a witness to testify to whether another

  “witness was telling the truth on a specific occasion because it is

  solely the jury’s responsibility to determine whether a particular

                                    5
  witness’s testimony or statement is truthful.” People v. Bridges,

  2014 COA 65, ¶ 11. “This rule applies to both direct and indirect

  implications of a [witness’s] truthfulness.” Venalonzo v. People,

  2017 CO 9, ¶ 32.

                            A.   The Therapist

¶ 13   Our case law recognizes that “‘[a]n expert may testify as to the

  typical demeanor and behavioral traits displayed by a sexually

  abused child,’ . . . because it assists the jury in understanding the

  victim’s behavior after the incident — why the victim acted the way

  he or she did.” People v. Relaford, 2016 COA 99, ¶ 28 (quoting

  People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007)). This type of

  expert testimony “aid[s] the jury in understanding the typicality of

  reactions by [children] who have been subjected to sexual abuse

  that might, under other circumstances, be considered bizarre.”

  People v. Morrison, 985 P.2d 1, 6 (Colo. App. 1999), aff’d, 19 P.3d

  668 (Colo. 2000); accord People v. Fasy, 829 P.2d 1314, 1317 (Colo.

  1992) (The doctor’s “testimony clearly assisted the jury in

  understanding the victim’s behavior after the incident.”).

¶ 14   This type of evidence is considered proper because it “(1)

  relates to an issue apart from credibility and (2) only incidentally


                                     6
  tends to corroborate a witness’s testimony.” Relaford, ¶ 31 (quoting

  People v. Cernazanu, 2015 COA 122, ¶ 20). This evidence does not

  say whether the child was or was not lying on a specific occasion;

  instead, it explains why a jury should not necessarily disbelieve a

  child because of circumstances that, in a different context, would

  discredit the child’s story. See People v. Whitman, 205 P.3d 371,

  383 (Colo. App. 2007). Such information provides “a relevant

  insight into the puzzling aspects of the child’s conduct and

  demeanor which the jury could not otherwise bring to its

  evaluation.” Id. (quoting People v. Aldrich, 849 P.2d 821, 829 (Colo.

  App. 1992)); see also State v. Myers, 359 N.W.2d 604, 610 (Minn.

  1984) (“Background data providing a relevant insight into the

  puzzling aspects of the child’s conduct and demeanor which the

  jury could not otherwise bring to its evaluation of her credibility is

  helpful and appropriate in cases of sexual abuse of children.”))

  (quoted with approval by the supreme court in Fasy, 829 P.2d at

  1317).

¶ 15   The present case is, in many respects, like People v. Mintz.

  There, as here,




                                     7
          the expert . . . answered a number of
          hypothetical questions reflecting the facts of
          the present case. The expert testified about
          traits and behavior generally exhibited by
          children. He did not testify [the] victim
          exhibited these traits, and he did not offer an
          opinion about whether [the] victim told the
          truth about having been abused.

          The purposes for which the expert’s testimony
          was admitted in the case have previously been
          deemed proper. . . .

          ....

          This evidence was admissible “because the
          expert testified in general terms [and] did not
          focus on the truthfulness of the child’s
          statements.”

Mintz, 165 P.3d at 831-32 (quoting Morrison, 985 P.2d at 5); see

also Morrison, 985 P.2d at 5 (“The hypothetical question posed to

this witness contained facts substantially identical to those

disclosed by the evidence here, i.e., one of the victims had made

rather bizarre accusations against defendant and had later

withdrawn them. The expert’s opinion that such actions are typical

of the method of empowerment used by young male victims was

admissible under CRE 702 to explain that such accusations and

later denials by such a victim are not necessarily unusual.”).




                                  8
¶ 16   We reject Short’s assertion that Mintz and Morrison were

  wrongly decided. Persuaded by those authorities, we perceive

  nothing improper about the therapist’s testimony here.

¶ 17   In reaching this conclusion, we are cognizant of the supreme

  court’s recent decision in Venalonzo. In that case, a forensic

  interviewer “testified about the two girls’ interviews and compared

  their behavior to that of other child sex assault victims.

  Specifically, she stated that many of the children’s behaviors were

  common to [those of] other child sex assault victims she had

  interviewed . . . .” Venalonzo, ¶ 35. The supreme court held that

  “the only purpose for the interviewer’s testimony comparing [the two

  children’s] behavior to that of other child sex assault victims was to

  bolster the children’s credibility. Admitting this evidence did not

  make any other fact at issue more or less probable.” Id. at ¶ 36

  (citation omitted). Consequently, the court held that the

  interviewer’s testimony “improperly bolstered the credibility of the

  child victims by creating an impermissible inference that they were

  telling the truth in this case.” Id. at ¶ 2.

¶ 18   Venalonzo is distinguishable from the present case. Unlike the

  present case, the expert in Venalonzo was intimately involved with


                                      9
  the child victims in the case. She was the individual who took their

  statements, testified to their behaviors, and compared their

  behaviors to those she saw in other child sexual abuse cases. The

  interviewer was, therefore, testifying as both a fact witness and an

  expert. The jury could not help but interpret what the expert had to

  say, in light of her dual role, as intimating her opinion that the

  children had been truthful during the interview.

¶ 19   In the present case, the therapist did not play a dual role. She

  was not involved in taking — and did not otherwise witness — the

  victim’s statements. Her expert opinions could not be interpreted

  as conveying an opinion of her belief in the truthfulness of the

  victim on another occasion.

¶ 20   Notably, the court in Venalonzo did not repudiate or retreat

  from its earlier decision in Fasy — a decision consistent with the

  principles and authorities upon which we rely here. Consistent

  with Fasy, the therapist’s testimony here permissibly conveyed to

  the jury information that would assist it in evaluating what might

  appear to be puzzling aspects of the victim’s behavior subsequent to

  the commission of the alleged offense. Although that evidence “may

  incidentally give rise to an inference that a victim is or is not telling


                                     10
  the truth about the specific incident,” “this fact alone is insufficient

  to deny admission of the evidence, because expert testimony

  generally tends to bolster or attack the credibility of another

  witness.” People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986).

                             B.   The Detective

¶ 21   We also perceive nothing improper about the detective’s

  testimony. The detective was not testifying to the truthfulness of

  the therapist, and thus, inferentially, of the victim too. The

  detective was simply relating to the jury his observations about

  child victim disclosures; he rendered no opinion about whether a

  child’s difficulty in disclosing something made it more or less likely

  that he or she was telling the truth.

                     C.   Grandmother L’s Testimony

¶ 22   Based on our reading of other parts of Venalonzo and of

  Cernazanu, we conclude that Grandmother L’s testimony that the

  victim “normally would not lie about something like that” was

  improper.

¶ 23   In Venalonzo, the supreme court held that a mother’s

  testimony that her child




                                     11
             did not display any signs that she was lying
             when she reported the incident, that [the child]
             was not sophisticated enough to make up a
             story about the sexual assault, and that [the
             child] had no reason to accuse [the defendant]
             unless the incident had actually occurred . . .
             amounted to testimony that [the child] was
             telling the truth about the sexual assault.

  Venalonzo, ¶ 39. Further, the court pointed to the prosecutor’s

  statement (“you said that she wouldn’t accuse somebody of this”)

  and question (whether the child’s “mind wasn’t sophisticated

  enough to come up with this”) as eliciting the mother’s comments

  on the child’s veracity in the case. Id. at ¶ 42.

¶ 24   In Cernazanu, a division of this court held that a mother’s

  testimony that her child did not display typical “lying” behavior

  when reporting a sexual assault necessarily implied to the jury that

  the victim was not lying, and thus, that she was telling the truth on

  that occasion. 2015 COA 122, ¶¶ 16-22.

¶ 25   Similar to those cases, Grandmother L’s comment that the

  victim would normally not lie about something like “that” served no

  other purpose than to convey to the jury Grandmother L’s belief

  that the victim was not lying — and, consequently, that she was

  telling the truth — on this occasion.



                                     12
¶ 26   In so concluding, we necessarily reject the prosecution’s

  argument that Grandmother L’s testimony was evidence of the

  victim’s general character for truthfulness, which under CRE 608(a)

  was admissible because Short’s defense attacked the victim’s

  character for truthfulness. The evidence challenged on appeal was

  not evidence of the victim’s general character for truthfulness but

  rather “evidence of [the victim’s] specific veracity habit and its

  application to a specific occasion.” Cernazanu, ¶ 23.

¶ 27   As noted earlier, because Short did not object to Grandmother

  L’s testimony, reversal is not warranted in the absence of plain

  error.

¶ 28   Plain error is error that is both “obvious and substantial.”

  Hagos v. People, 2012 CO 63, ¶ 14. To qualify as plain error, the

  error must be so clear cut that a trial judge should have been able

  to avoid it without benefit of objection, People v. Pollard, 2013 COA

  31M, ¶ 39, and it must be “seriously prejudicial” — that is, it must

  so undermine the fundamental fairness of the trial as to cast

  serious doubt on the reliability of the defendant’s conviction. People

  v. Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.




                                     13
¶ 29   “The rule that a witness may not express an opinion as to the

  credibility of another witness is both clear and long established.”

  People v. Cook, 197 P.3d 269, 275-76 (Colo. App. 2008); see, e.g.,

  People in Interest of G.E.S., 2016 COA 183, ¶ 31 n.2 (“[T]his court

  and the supreme court have long held that a witness may not vouch

  for the credibility of another witness on a particular occasion[.]”).”

  Although, in some circumstances, it is not always clear how the

  rule applies, Relaford, ¶¶ 44-48 (sorting out permissible from

  impermissible expert opinion on child behaviors), it is, in our view,

  clear in this case. Thus, the “obvious” prong of the plain error

  standard is met.

¶ 30   The issue, then, is whether the error in allowing Grandmother

  L’s testimony was so “seriously prejudicial” as to warrant a new

  trial. We conclude that it was not.

¶ 31   We note, in this respect, that (1) Grandmother L’s testimony

  was very brief; (2) Grandmother L was not an expert, and thus, her

  testimony did not have the imprimatur of expertise; (3) the

  prosecution presented evidence (i.e., the victim’s vaginal redness

  and swelling, behavioral changes, repeated urinary tract infections,

  and incontinence; Short’s acknowledgment that somebody had


                                     14
  abused the victim; and the victim’s vehement reaction upon seeing

  Short for the first time in over a year) corroborating the victim’s

  allegations of sexual misconduct; and (4) the prosecution made no

  reference to this part of Grandmother L’s testimony in closing

  argument.

¶ 32   In light of these circumstances, the error here does not cast

  serious doubt on the reliability of Short’s conviction; consequently,

  there is no plain error warranting reversal. See People v. Gallegos,

  644 P.2d 920, 927 (Colo. 1982) (improperly admitting investigating

  officer’s testimony “attesting to the accuracy or credibility of witness

  statements” did not constitute plain error where “the jury had an

  opportunity to evaluate the extensive testimony of the victim” at

  trial); see also People v. Eppens, 979 P.2d 14, 18 (Colo. 1999)

  (finding a social worker’s testimony that she “felt that [the victim]

  was sincere” did not rise to the level of plain error because the

  social worker testified as a lay witness, the jury had “a full

  opportunity to judge [the victim’s] credibility in light of her

  demeanor,” and the victim’s testimony was corroborated by other

  evidence); cf. Bridges, ¶ 21 (finding error was reversible because the




                                     15
  witness expressing the opinion was qualified as an expert witness

  and there was no other corroboration of the victim’s allegations).

                   III.   Short’s Exculpatory Statement

¶ 33   Short contends that the trial court erroneously compelled him

  to forgo admitting an exculpatory part of a statement he gave to the

  police by telling him that, if that part of the statement was

  admitted, the prosecution would be permitted to expose the jury to

  the fact that he had previously been convicted of a felony. Although

  we agree, we nonetheless conclude that reversal is not warranted.

                                A.    Facts

¶ 34   At trial, the prosecution presented evidence from Short’s

  recorded interview with police. Through the testimony of a

  detective, the prosecution introduced a statement made by Short in

  which he agreed “someone’s abusing [the victim].” The prosecution

  did not, however, propose to admit what Short had said

  immediately thereafter: “[B]ut it ain’t me.”1




  1In the trial court, defense counsel argued that Short had said, “I
  did not. I swear to God.” Short did say this, but about sixteen
  seconds after he said, “[B]ut it ain’t me,” and in response to the
  detective’s accusation (that no one tried to admit) that the victim
  said it was Short who “touched” her.

                                     16
¶ 35   Short asserted that admitting the first part of the statement

  without the second was “a complete misrepresentation” of what he

  said during the interview, and that he was entitled to have the

  second part admitted under the rule of completeness, CRE 106.

¶ 36   The trial court determined that the second part of the

  statement could, as Short argued, come in under the rule of

  completeness. However, the trial court also determined that

  because the second part of the statement was self-serving hearsay,

  if it was introduced by the defense, the prosecution would be

  entitled to impeach it with evidence of Short’s previous felony

  conviction. See CRE 806 (“When a hearsay statement . . . has been

  admitted in evidence, the credibility of the declarant may be

  attacked, and if attacked may be supported, by any evidence which

  would be admissible for those purposes if declarant had testified as

  a witness.”); see also § 13-90-101, C.R.S. 2017 (“In every case the

  credibility of the witness may be drawn in question, as now

  provided by law, but the conviction of any person for any felony

  may be shown for the purpose of affecting the credibility of such

  witness.”). Because of this ruling, Short did not attempt to admit

  the second part of the statement.


                                   17
       B.     The Trial Court Erred in Ruling that an Exculpatory Part of
              Short’s Statement Was Admissible Subject to Impeachment
                                   Under CRE 806

¶ 37        We review a trial court’s evidentiary ruling for an abuse of

  discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). “A trial

  court abuses its discretion when its ruling is (1) manifestly

  arbitrary, unreasonable, or unfair or (2) based on an erroneous

  understanding or application of the law.” People v. Casias, 2012

  COA 117, ¶ 17.

¶ 38        Here, we conclude that the trial court misunderstood or

  misapplied the rule of completeness. The trial court correctly

  recognized that the second part of Short’s statement qualified the

  first, and, consequently, the second part could be considered as one

  component of a larger, completed statement. But for purposes of

  attributing who was the proponent of the evidence (and thus who

  carried the evidentiary burdens associated with its admission), the

  court divided the completed statement into two parts and held

  Short responsible for the evidentiary “costs” of admitting the part

  favoring him. This, we believe, was error. The proper course would

  have been to inform the prosecution that it had a choice: admit (and

  forfeit any objection to any pertinent part of) the completed


                                        18
  statement or admit no part of the statement at all. If the

  prosecution had chosen to admit the completed statement, it could

  not transfer onto Short the costs of admitting that part that was

  favorable to him. The admission of the completed statement could

  not, then, be made subject to a right in the prosecution to impeach

  the part containing Short’s exculpatory statement.

¶ 39   At common law, the rule of completeness permitted the

  introduction into evidence of a part of a statement to explain or put

  into context another part of the statement that was (or was about to

  be put) in evidence; the rule did not, however, extend to portions of

  the statement that were irrelevant to the part of the statement that

  was (or was about to be put) in evidence. See People v. DelGuidice,

  199 Colo. 41, 47, 606 P.2d 840, 844-85 (1979) (relying on Camps v.

  N.Y.C. Transit Auth., 261 F.2d 320, 322 (2d Cir. 1958)); see also

  United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (“[I]t

  is consistently held that the rule [of completeness] permits

  introduction only of additional material that is relevant and is

  necessary to qualify, explain, or place into context the portion

  already introduced.” (quoting United States v. Simms, 385 F.3d

  1347, 1359 (11th Cir. 2004))); Diggs v. United States, 28 A.3d 585,


                                    19
  597 (D.C. 2011) (“The rule of completeness does not provide that

  when part of an out-of-court statement is introduced against its

  maker, the declarant has an automatic right to insist that other

  parts be admitted too, simply because they are favorable to his

  position. Rather, the rule contemplates that other parts of the

  statement should be admitted, in the trial court’s discretion, ‘when

  this is necessary to explain the admitted portion, to place it in

  context, or to avoid misleading the trier of fact.’” (quoting Butler v.

  United States, 614 A.2d 875, 882 (D.C. 1992))).

¶ 40   According to the supreme court, “[t]he common-law rule of

  completeness is codified in CRE 106.” People v. Melillo, 25 P.3d

  769, 775 n.4 (Colo. 2001). CRE 106 provides that “[w]hen a writing

  or recorded statement or part thereof is introduced by a party, an

  adverse party may require him at that time to introduce any other

  part or any other writing or recorded statement which ought in

  fairness to be considered contemporaneously with it.”

¶ 41   Because CRE 106 is identical to Fed. R. Evid. 106, we consider

  federal cases and authorities concerning the federal rule highly

  persuasive in interpreting and applying our own. See, e.g., Faris v.

  Rothenberg, 648 P.2d 1089, 1091 n.1 (Colo. 1982) (“Fed. R. Civ. P.


                                     20
  63 is identical to C.R.C.P. 63. Thus, federal cases and authorities

  interpreting the federal rule are highly persuasive.”); United Bank of

  Denver Nat’l Ass’n v. Shavlik, 189 Colo. 280, 282, 541 P.2d 317,

  318 (1975) (deeming the authority and commentators on Fed. R.

  Civ. P. 14 to be persuasive because C.R.C.P. 14 is virtually

  identical).

¶ 42   One commentator has aptly summarized Fed. R. Evid. 106

  thusly:

                Basically, the rule prevents a party from
                achieving an unfair result by introducing all or
                part of a writing or recording out of its context.
                When the trial court finds that fairness
                requires the admission of additional evidence,
                the proponent must decide between allowing
                all of the evidence to be admitted and
                withdrawing the originally proffered portions.

                ....

                The party who wants to complete the record is
                entitled under the Rule to compel the offer of
                the additional information at the time the
                proponent offers the partial evidence, rather
                than waiting until a later stage of the trial. . . .
                As such, the rule reduces the risk that a
                writing or recording will be taken out of
                context and that this initial misleading
                impression will take hold in the mind of the
                jury. The opponent has discretion, of course,
                to wait to offer the completing evidence until a
                later point. But the rule recognizes that


                                         21
            sometimes waiting until later to put an unfair
            presentation of harmful evidence in context is
            just not good enough.

  2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual

  § 106.02 (11th ed. 2015) (footnotes omitted); see also 1 Kenneth S.

  Broun, McCormick on Evidence § 56 (7th ed. 2013) (recognizing that

  Fed. R. Evid. 106 permits “the adversary . . . to require the

  proponent to introduce both the part which the proponent desires

  to introduce and other passages which are an essential part of its

  context”); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

  Evidence § 1:42 (4th ed. 2015) (“[S]ometimes the party who offers a

  written or recorded statement (or part of one) may himself be

  required in appropriate cases to present additional parts, rather

  than leaving the task of providing necessary context to other

  parties. In both cases, the aim is to prevent distortion and

  consequent misleading.”).

¶ 43   What happens, though, when otherwise inadmissible evidence

  is proffered as the means of satisfying the rule of completeness

  embodied in Fed. R. Evid. 106? Some courts, including divisions of

  this court, have held that the rule of completeness does not

  authorize the admission of otherwise inadmissible evidence. See


                                    22
People v. Davis, 218 P.3d 718, 731 (Colo. App. 2008) (“Under the

rule of completeness, when one party introduces part of a written or

recorded statement, the opposing party can introduce other parts of

that statement. . . . However, self-serving hearsay declarations

made by a defendant may be excluded because there is nothing to

guarantee their trustworthiness.”); accord People v. Zubiate, 2013

COA 69, ¶ 33 (stating, in dicta, “[s]elf-serving hearsay declarations

made by a defendant may be excluded under the rule of

completeness because there is nothing to guarantee their

trustworthiness”), aff’d, 2017 CO 17; see also United States v. Ford,

761 F.3d 641, 652 (6th Cir. 2014) (“[E]xculpatory hearsay may not

come in solely on the basis of [the rule of] completeness.” (quoting

United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013))); United

States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“Even if the rule

of completeness did apply, exclusion of [the defendant’s]

exculpatory statements was proper because these statements would

still have constituted inadmissible hearsay.”), holding modified on

other grounds by United States v. Larson, 495 F.3d 1094 (9th Cir.

2007); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996)




                                  23
  (Rule 106 does not “render admissible the evidence which is

  otherwise inadmissible under the hearsay rules.”).

¶ 44   But that position is not the uniform view. See, e.g., United

  States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010) (A

  hearsay objection “does not block [information’s] use when it is

  needed to provide context for a statement already admitted.”);

  United States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008) (“[O]ur

  case law unambiguously establishes that the rule of completeness

  may be invoked to facilitate the introduction of otherwise

  inadmissible evidence.”); United States v. Sutton, 801 F.2d 1346,

  1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function

  only by permitting the admission of some otherwise inadmissible

  evidence when the court finds in fairness that the proffered

  evidence should be considered contemporaneously. A contrary

  construction raises the specter of distorted and misleading trials,

  and creates difficulties for both litigants and the trial court.”);

  United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) (Under

  Rule 106, otherwise inadmissible evidence is admissible where it “is

  necessary to correct a misleading impression.”); State v. Sanchez,

  380 P.3d 375, 383, 383 n.4 (Utah Ct. App. 2016) (noting the split


                                     24
  among federal and state courts over whether Rule 106 admits

  otherwise inadmissible hearsay, and deciding that it does allow the

  admission of such evidence), cert. granted, 390 P.3d 727 (Utah

  2017).

¶ 45   Nor, according to a number of commentators, is the failure to

  admit otherwise inadmissible evidence pursuant to the rule of

  completeness the better view. For example, one commentator said:

            A party should not be able to admit an
            incomplete statement that gives an unfair
            impression, and then object on hearsay
            grounds to completing statements that would
            rectify the unfairness.

            The appropriate way to resolve the hearsay
            issue is to hold that the party who offers an
            incomplete statement or document forfeits any
            hearsay objection to completing evidence that
            is necessary to correct a misleading
            impression. . . . [B]y introducing evidence in
            an unfair and selective way, the proponent can
            be deemed to waive its right to object to
            hearsay that would be necessary to place that
            evidence in proper context. It is up to the
            proponent of the initial portion to decide
            whether to forgo that portion, or to forgo the
            hearsay objection to the remainder. Another
            way to look at it is that when the proponent
            offers evidence out of its necessary context,
            any out-of-court statement that is clearly
            necessary to place the evidence in proper
            context is not hearsay at all; rather it is



                                   25
           admissible for the not-for-truth purpose of
           providing context.

2 Saltzburg et al., § 106.02 (footnotes omitted); see also 1 Mueller &

Kirkpatrick, § 1:43 (“[H]earsay objections should not block use of a

related statement . . . when it is needed to provide context for

statements already admitted. Thus a statement should be

admissible if needed to provide context under Rule 106 and to

prevent misleading use of related statements even if the statement

would otherwise be excludable as hearsay . . . . ”); id. § 1:45 (“On

request by the accused, the court should require a prosecutor who

wants to offer parts of a confession to introduce at the same time

not only the incriminating parts but also self-serving or exculpatory

parts that should in fairness be heard and considered at the same

time. If for any reason the prosecutor introduces less than all of it,

in the process deleting self-serving or exculpatory remarks that the

accused wishes to have heard by the trier of fact, the rule of

completeness requires the court to receive the latter.”); Dale A.

Nance, Verbal Completeness and Exclusionary Rules Under the

Federal Rules of Evidence, 75 Tex. L. Rev. 51, 54 (1996) (“If a

proponent has evidence of the opponent’s admission, the proponent



                                  26
  may well be tempted to introduce the part of that admission that is

  most damaging to the opponent, secure in the knowledge that the

  opponent cannot respond. The completeness doctrine vitiates this

  maneuver by assuring the introduction of all parts of the admission

  that are demanded by the opponent and that affect the inferences

  that may legitimately be drawn from the part of the utterance the

  proponent has chosen to introduce. Thus, the completeness

  doctrine serves a trumping function in that it trumps exclusionary

  rules that would otherwise prevent the opponent’s response.”).

¶ 46   Persuaded by this latter group of authorities, we conclude that

  the trial court properly determined that Short’s otherwise

  inadmissible self-serving hearsay was admissible under the rule of

  completeness to qualify, explain, or place into context the evidence

  proffered by the prosecution. See Nance, 75 Tex. L. Rev. at 83

  (“Neither fairness in administration nor the ascertainment of truth

  is served by an interpretation of Rule 106 that would allow a

  proponent to take matters out of context by choosing to omit




                                   27
  information in the knowledge that the opponent is prevented by an

  exclusionary rule from presenting that which is omitted.”).2

¶ 47   The remaining question, though, is whether the court could

  exact a “price” from Short under the rule of completeness for

  admitting the exculpatory portions of his statement. In United

  States v. Velasco, 953 F.2d 1467, 1473 n.5 (7th Cir. 1992), the

  Seventh Circuit Court of Appeals appeared to answer “yes,” or at

  least “yes” in a case where the defendant was trying, without having

  to take the stand himself, to “get[] the benefit of the statement that

  [he] ha[d] recanted.” Characterizing the defendant’s position there

  as “want[ing] to have his cake, eat it too, and not have to clean up

  the dishes afterwards,” the court said that Rule 806 was “not

  inapplicable.” Id.

¶ 48   One commentator has, however, espoused a contrary view:

             If one views Rule 106 as creating a distinct
             hearsay exception which the opponent is now
             using to present his self-serving hearsay, then
             Rule 806 allows the proponent to impeach. If,

  2 Necessarily, then, we decline to follow the Davis division’s holding
  to the contrary. See People v. Smoots, 2013 COA 152, ¶ 20 (stating
  that one division of the court of appeals is “not obligated to follow
  the precedent established by another division”), aff’d sub nom.
  Reyna-Abarca v. People, 2017 CO 15.


                                    28
             however, one views Rule 106 as controlling the
             proponent’s use of party-opponent admissions,
             admissible under Rules 801(d)(2)(A) and
             801(d)(2)(B), then Rule 806 implicitly precludes
             impeachment, because such admissions are
             defined as nonhearsay in the Federal Rules.
             The latter must be the right result because the
             exercise of the completeness motion should
             not subject the opponent to any impeachment
             that would not have been allowed if the
             proponent had presented the entirety of the
             statement in the first place, as it was his duty
             to do. The forced presentation theory of
             completeness answers the question of how to
             treat the resulting admission of the remainder.

  Nance, 75 Tex. L. Rev. at 94-95 (footnotes omitted); id. at 96

  (critiquing Velasco, saying its “dictum mistakes the nature of the

  completeness doctrine, as well as the import of Rule 806: The

  defendant should have been no more subject to impeachment than

  he would have been had the government presented the relevant

  whole of the post-arrest statement”); cf. 1 Mueller & Kirkpatrick,

  § 1:45 (requiring the prosecution to offer additional parts of a

  statement at the outset “keeps the government from putting what

  amounts to unfair pressure on the accused to take the witness

  stand”).

¶ 49   In our opinion, this latter view is more in line with the

  purposes of the rule of completeness codified in Rule 106, and,


                                    29
  accordingly, we adopt it. If the prosecution wants to admit part of a

  statement, it ought, in fairness, to “pay the costs” of admitting it in

  its (relevant) entirety under the rule of completeness. If it is not

  willing to pay the costs, it should not be permitted to admit any

  portion of the statement.

¶ 50     So far, we have been talking about Rule 106 and its

  application without addressing the form of the statement at issue.

  But by its terms, Rule 106 applies only to “writings or recorded

  statements.” Short’s statement was not admitted in this form. It

  was admitted through the oral testimony of a detective.

  Nonetheless, following the lead of federal case law on the subject,

  we conclude that Rule 106 principles also apply to the form of

  evidence proffered by the prosecution here under CRE 611(a) —

  which is substantively identical to Fed. R. Evid. 611(a).3 See, e.g.,


  3   CRE 611(a) provides as follows:

              (a) Control by Court. The court shall exercise
              reasonable control over the mode and order of
              interrogating witnesses and presenting
              evidence so as to (1) make the interrogation
              and presentation effective for the
              ascertainment of the truth, (2) avoid needless
              consumption of time, and (3) protect witnesses
              from harassment or undue embarrassment.


                                        30
  Lopez-Medina, 596 F.3d at 734 (“While Rule 106 applies only to

  writings and recorded statements, we have held ‘the rule of

  completeness embodied in Rule 106 is “substantially applicable to

  oral testimony,” as well by virtue of Fed. R. Evid. 611(a) . . . .’”

  (quoting United States v. Zamudio, 141 F.3d 1186, 1998 WL

  166600, at *5 (10th Cir. Apr. 6, 1998) (unpublished table

  decision))); United States v. Holden, 557 F.3d 698, 705 (6th Cir.

  2009) (holding that the Rule 106 principle of completeness “has

  since been extended to oral statements through interpretation of

  Fed. R. Evid. 611(a),” and the two are now “equivalent”); United

  States v. Range, 94 F.3d 614, 621 (11th Cir. 1996) (Rule 611 “has

  been read to impose the same fairness standard [as under Rule

  106] upon conversations.”); cf. State v. Cabrera-Pena, 605 S.E.2d

  522, 525-26 (S.C. 2004) (finding that the common law of the state

  extends the rule of completeness in Rule 106 to oral

  communications).

¶ 51   The upshot of all this is that the trial court erroneously held

  that the exculpatory parts of Short’s statement could be admitted,

  subject to impeachment of Short (as the declarant) with his prior

  conviction, under CRE 806. In light of the court’s erroneous ruling,


                                      31
  Short did not seek to have the exculpatory parts of his statement

  admitted, and, consequently, the only evidence the jury heard, with

  respect to his statement, was that he admitted “someone [was]

  abusing” the victim.

                      C.   The Error Was Harmless

¶ 52   Under Crim. P. 52(a), we are to disregard a harmless error.

  But whether we can disregard a particular error as harmless

  depends, in part, on (1) whether the error is classified as

  constitutional or nonconstitutional in dimension and (2) whether

  the error satisfies the appropriate harmless error test for

  constitutional or nonconstitutional error. See Krutsinger v. People,

  219 P.3d 1054, 1058 (Colo. 2009) (discussing the harmless error

  tests for constitutional and nonconstitutional error).

¶ 53   For two reasons, we do not apply the harmless error test for

  constitutional error:

           (1) In Krutsinger, the supreme court recognized that not

            “every erroneous evidentiary ruling . . . amounts to

            federal constitutional error.” Id. at 1062. “[T]he

            standard or test for assessing whether a defendant’s right

            to . . . present a defense has been violated by evidentiary


                                    32
            rulings is clearly dependent upon the extent to which he

            was permitted to subject the prosecutor’s case to

            ‘meaningful adversarial testing.’” Id. (quoting Crane v.

            Kentucky, 476 U.S. 683, 691 (1986)). In the present

            case, Short was permitted to subject the prosecution’s

            case to “meaningful adversarial testing.” Consequently,

            the trial court’s error was not of constitutional

            dimension; and

          (2) Short did not assert in the trial court that the court’s

            rule of completeness ruling chilled his rights to present a

            defense and to a fair trial. Consequently, these

            constitutional issues have not been preserved for

            appellate review. See People v. Gash, 165 P.3d 779, 781

            (Colo. App. 2006) (holding evidentiary objection in the

            trial court based on hearsay but not confrontation

            grounds did not preserve alleged confrontation error for

            review).

¶ 54   For these reasons, we apply the harmless error test for

  nonconstitutional error. See, e.g., State v. Chavez, 189 Wash. App.

  1047, 2015 WL 5099540, *7 (Aug. 31, 2015) (unpublished opinion)


                                   33
  (stating that error in precluding defendant from asking witness

  about other parts of statement was not an error of constitutional

  magnitude).4 Under the nonconstitutional harmless error test, the

  defendant bears the burden of showing prejudice from the error.

  Casias, ¶ 60. To obtain reversal, the defendant must establish a

  reasonable probability that the court’s error contributed to his

  conviction. See id. at ¶ 62. A “reasonable probability” does not

  mean that it is “more likely than not” that the error caused the

  defendant’s conviction; rather, it means only a probability sufficient

  to undermine confidence in the outcome of the case. Id. at ¶ 63.

¶ 55   In assessing the prejudicial effect of evidentiary error,

             an appellate court considers a number of
             factors, namely, “the overall strength of the
             state’s case, the impact of the improperly
             admitted or excluded evidence on the trier of
             fact, whether the proffered evidence was
             cumulative, and the presence of other evidence
             corroborating or contradicting the point for
             which the evidence was offered.”

  4 Ordinarily, unpreserved constitutional error would warrant relief
  only if the error qualified as plain error, i.e., error that is “obvious”
  and “so undermine[s] the basic fairness of the trial as to cast
  serious doubt on the reliability of the judgment.” People v. Gash,
  165 P.3d 779, 781-82 (Colo. App. 2006). The type of prejudice a
  defendant must show to demonstrate plain error is more onerous
  than that which he or she must demonstrate to show reversible
  nonconstitutional error. See Hagos v. People, 2012 CO 63.

                                      34
  Id. at ¶ 64 (quoting State v. Martin V., 926 A.2d 49, 54 (Conn. App.

  Ct. 2007)). “‘[T]he single most important factor’ in a

  nonconstitutional harmless error inquiry is whether the case was

  ‘close.’” Id. at ¶ 69 (quoting United States v. Ince, 21 F.3d 576, 584

  (4th Cir. 1994)).

¶ 56   Initially, we note that we are usually confronted with

  evidentiary error involving either the improper admission of

  something into evidence or the improper exclusion of something

  from the evidence. In the present case we are confronted with both.

  Short’s statement that “someone’s abusing” the victim was

  inadmissible absent compliance with the rule of completeness.

  Conversely, Short was improperly inhibited from introducing

  contextual evidence of a denial of wrongdoing on his part.

¶ 57   Short’s statement that “someone’s abusing her” was

  essentially cumulative of other evidence indicating that the victim

  had been abused. Besides the victim’s testimony that Short had

  “touch[ed]” her “privates,” the victim had vaginal redness and

  swelling, suffered urinary tract infections, and exhibited behavioral




                                    35
  changes, including regression in her toilet training,5 “dancing

  provocatively,” making excuses to stay longer at Grandmother L’s

  house, and crying when she had to return to Grandmother K’s

  home where Short sometimes stayed. Defense counsel’s expert

  testified that the victim’s urinary tract infections could be attributed

  to sexual assault, and the victim’s significant behavioral changes

  tended to corroborate the fact of a sexual assault. See Stevens v.

  People, 796 P.2d 946, 956 (Colo. 1990) (recognizing that behavioral

  changes such as a child’s loss of toilet training, sexual knowledge

  that is new or atypical for the child, and inappropriate sexual

  behavior are corroborative of sexual assault allegations).

¶ 58   The bigger problem, as we see it, was the exclusion of Short’s

  denial of wrongdoing. Although this evidence would not have been

  admissible otherwise,6 its absence here allowed the prosecution to



  5 Grandmother L testified that “[the victim] would wet her pants a
  lot” and that she began “pooping” in her pants.

  6 See, e.g., People v. Abeyta, 728 P.2d 327, 331 (Colo. App. 1986)
  (“Hearsay declarations made by a defendant in his own favor are
  generally not admissible for the defense. A self-serving declaration
  is excluded because there is nothing to guarantee its testimonial
  truthworthiness. If such evidence were admissible, the door would
  be thrown open to obvious abuse; an accused could create evidence

                                    36
  present a misleading picture (i.e., of someone who had admitted

  knowing the victim had been abused but, apparently, had not

  denied doing it himself).

¶ 59   In other circumstances, such a situation could warrant

  reversal for a new trial. But not, we think, here. In the end, the

  case against Short was strong, even aside from the misleading

  statement that was entered into evidence. Short was shown to have

  had access to the victim, and on occasion was alone with the victim,

  around the time the victim’s relatives first began to suspect she was

  being abused. The victim reacted violently upon seeing Short

  unexpectedly for the first time in over a year, and she identified

  Short as her abuser both in out-of-court statements and in her in-

  court testimony. Because this was not a close case, the court’s

  evidentiary error was not such as would undermine our confidence

  in the verdict. Consequently, the error was harmless.




  for himself by making exculpatory statements for subsequent use at
  his trial.”).


                                    37
                  IV.   One Conviction and Sentence, Not Two

¶ 60   Short contends, the People concede, and we agree, that only

  one judgment of conviction and sentence should have been imposed

  in this case.

¶ 61   The trial court entered separate convictions and sentences for

  both (1) sexual assault on a child and (2) sexual assault on a child-

  pattern of abuse. The court sentenced Short to six years to life

  imprisonment on the first count, and to nine years to life

  imprisonment on the second count.

¶ 62   The number of convictions and sentences that could be

  entered turns on whether the pattern of abuse count operated only

  as a sentence enhancer or encompassed an additional substantive

  offense as well. People v. Wiseman, 2017 COA 49M, ¶ 10. If the

  former was the case, then only one conviction with an enhanced

  sentence could be entered; if the latter was the case, then two

  convictions and sentences could be entered. Id. at ¶ 11.

¶ 63   Here, the jury entered only one guilty verdict, finding Short

  guilty of sexual assault–pattern of abuse. As the People concede,

  the single verdict form does not support convictions for two

  separate offenses for sexual assault and sexual assault-pattern of


                                      38
  abuse. Consequently, the pattern of abuse finding could act only as

  a sentence enhancer. The separate conviction and sentence for

  simple sexual assault must be vacated.

                            V.   Conclusion

¶ 64   The judgment of conviction is affirmed in part and vacated in

  part, and the case is remanded with directions to correct the

  mittimus consistent with the views expressed in this opinion.

       JUDGE HAWTHORNE concurs.

       JUDGE WELLING specially concurs.




                                   39
       JUDGE WELLING, specially concurring.

¶ 65   I agree with the majority’s analysis and conclusions in Parts

  II.B and II.C, as well as Parts III and IV. I also agree with the

  majority’s ultimate disposition of the case. Where I respectfully part

  ways with the majority, however, is its conclusion that admission of

  certain portions of Chery Young’s testimony was not error. Because

  I conclude that portions of Ms. Young’s testimony crossed the line

  of permissible testimony, I write separately.

                               I.   Background

¶ 66   Ms. Young was called by the prosecution and, without

  objection, testified as an expert in

           all aspects of child sexual assault and abuse and

             interactions and reactions of child victims during the

             sexual assault;

           the patterns of disclosure and outcry statements of child

             sexual assault and abuse victims;

           the forensic protocol of child sexual abuse interviews;

           the victim-offender relationship dynamics; and

           the “process of memory.”




                                     40
¶ 67   Ms. Young never treated, interviewed, or met A.P., the named

  victim in the case. Instead, she testified as a so-called blind expert.

  In this capacity she testified regarding the dynamics of sexual

  assault disclosures by children generally, including how the nature,

  timing, and details of such disclosures vary depending on a variety

  of circumstances, such as the age of the child, the relationship with

  the alleged perpetrator, and the stability of the child’s environment.

  During her direct examination, Ms. Young answered questions

  regarding the relationship between a child’s inconsistent

  disclosures and his or her truthfulness and credibility. She also

  responded to a pair of hypotheticals that closely tracked the facts of

  this case. Short never objected during Ms. Young’s testimony.

                              II.   Analysis

¶ 68   On appeal, Roger Lee Short contends that the trial court

  committed plain error by permitting Ms. Young to bolster the

  victim’s credibility and to explain away inconsistencies in her

  disclosures.

¶ 69   Divisions of this court have repeatedly permitted the use of

  blind experts in the context of prosecutions for sexual assaults on

  children. See, e.g., People v. Relaford, 2016 COA 99, ¶¶ 16, 33;


                                    41
People v. Whitman, 205 P.3d 371, 382-83 (Colo. App. 2007); People

v. Mintz, 165 P.3d 829, 831-32 (Colo. App. 2007); People v.

Morrison, 985 P.2d 1, 5-6 (Colo. App. 1999), aff’d, 19 P.3d 668

(Colo. 2000). The rationale is that “[a]n expert may testify as to the

typical demeanor and behavioral traits displayed by a sexually

abused child.” Mintz, 165 P.3d at 831; see also Whitman, 205 P.3d

at 383 (“Background data providing a relevant insight into the

puzzling aspects of the child’s conduct and demeanor which the

jury could not otherwise bring to its evaluation of her credibility is

helpful and appropriate in cases of sexual abuse of children, and

particularly of [young] children.” (quoting People v. Aldrich, 849 P.2d

821, 829 (Colo. App. 1992))). But even these experts “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). Nor may any

witness testify that another witness told the truth on a particular

occasion. CRE 608(a)(1); see also Wittrein, 221 P.3d at 1081 (“In

Colorado, neither lay nor expert witnesses may give opinion

testimony that another witness was telling the truth on a specific

occasion.”); People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999)


                                  42
  (collecting cases in support of the proposition that “[i]t is well

  established that CRE 608(a)(1) does not permit a witness to offer an

  opinion that a child was telling the truth on the specific occasion

  that the child reported a particular sexual assault by a defendant”).

  With these concepts in mind, I turn to two lines of inquiry of Ms.

  Young that I find problematic.

                    A.    Opinions on A.P.’s Credibility

¶ 70   Ms. Young was the sixth witness to testify at trial. By the time

  she testified, the jury was aware that A.P. had given inconsistent

  disclosures about what happened to her.

¶ 71   “[W]itnesses are prohibited from testifying that another

  witness is telling the truth on a particular occasion.” Venalonzo v.

  People, 2017 CO 9, ¶ 32 (citing Wittrein, 221 P.3d at 1081). “This

  rule applies to both direct and indirect implications of a child’s

  truthfulness.” Id. (citing Wittrein, 221 P.3d at 1082). The line

  between permissible and impermissible testimony, however, is not

  always clear. See Relaford, ¶ 40 (“[U]nder the existing case law, it is

  not always clear (or even consistent among cases) where to draw the

  line between expert testimony on the typical characteristics of

  sexual assault victims that is permissible and that which is


                                     43
  impermissible because it is tantamount to an opinion that the

  victim was telling the truth.”).

¶ 72   In my view, three of the questions posed to Ms. Young crossed

  this line, as opaque as it may be. Those questions were:

             Q. Are there portions in a child’s memory
             where you, frankly, expect there to be some
             inconsistencies?

             ....

             Q. Ms. Young, is then inconsistency always
             going to be a sign of some fabrication, of some
             degree of untruthfulness on the part of the
             child?

             ....

             Q. Conversely, would you describe that
             consistency between disclosures is always a
             sign of credibility?

¶ 73   These questions had only one discernable purpose: to elicit an

  opinion about the child victim’s credibility. They were calculated to

  elicit an opinion that notwithstanding inconsistencies, A.P.’s

  disclosures were credible. That is not the proper subject for expert

  testimony. See CRE 608(a)(1); see also Venalonzo, ¶ 32 (holding

  that CRE 608(a) “applies to both direct and indirect implications of

  a child’s truthfulness”).




                                     44
¶ 74   Venalonzo is instructive on this point. In Venalonzo, ¶ 7, the

  forensic interviewer testified about, among other things, “whether

  children typically say different things to the interviewer than they

  do to responding officers or Department of Human Services

  workers, or when testifying at trial.” The supreme court observed

  that “[o]nce the interviewer began comparing [the victims in the

  case] to other child sex assault victims — stating that children who

  had been sexually assaulted commonly gave conflicting details —

  her testimony had no proper purpose.” Id. at ¶ 36 (emphasis

  added). Here, the questions were even more problematic, as the

  prosecution’s questions invited the expert to draw a direct line

  between the inconsistencies in a child’s disclosures and the child’s

  credibility. This, in my view, is not a proper line of inquiry.

  Accordingly, I conclude that it was error for the trial court to permit

  these questions to be asked.

¶ 75   Short did not object to these questions, so we review for plain

  error. See Relaford, ¶ 36. Even assuming the error was obvious, in

  order to warrant reversal under a plain error standard, the error

  must have “so undermined the fundamental fairness of the trial

  itself so as to cast serious doubt on the reliability of the judgment of


                                     45
  conviction.” Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v.

  Miller, 113 P.3d 743, 750 (Colo. 2005)). I conclude that this

  testimony does not meet this exacting standard.

¶ 76   Although invited to offer a definitive opinion on the victim’s

  credibility by the prosecutor’s improper questions, Ms. Young did

  not do so. Instead, each time she was asked about the relationship

  between inconsistency, on the one hand, and credibility or

  untruthfulness, on the other hand, she opined that inconsistency is

  simply a factor that the jury should consider in assessing

  credibility, not that it should be disregarded or that it doesn’t

  matter. For example, in response to the first question, Ms. Young

  responded:

             Yes. I mean, and keep this in mind that
             inconsistent statements don’t, necessarily,
             don’t equal actually, fabrication. That
             inconsistent statements can occur for a variety
             of reasons. And the, the researchers that have
             done quite a bit on suggestibility and
             inconsistency, out of Cornell University, have
             been very clear about that. That, of course, we
             want to notice inconsistent statements. And we
             want to understand the reason for them. But,
             it would be a disservice to decide if a child
             makes an inconsistent statement, that the
             child is, therefore, not truthful.

  (Emphasis added.)


                                     46
¶ 77   She offered a similar explanation when asked whether

  “inconsistency [is] always going to be a sign of some fabrication”:

             Well -- no. It’s important to watch for
             [inconsistency]. It’s important to understand
             the dynamics behind it. But, then, it’s a
             disservice to say if a child is inconsistent. I
             think it’s important to explore why. And that
             somebody is able to talk about how come when
             you talked with this person and then when you
             talk with me, it seems like you’re talking about
             things that maybe only the [t]herapist, that
             only I know about so far. Exploring that and
             asking the child to explain how come they
             haven’t been able to talk about that with other
             people is important to know why. That, you
             know, I don’t want to say they’re unimportant
             at all. They’re just important to investigate.

  (Emphasis added.)

¶ 78   She continued in a similar vein when asked whether

  consistency is “always a sign of credibility”:

             No. There are a few cases where it’s, usually,
             high-conflict alienation. The child making an
             allegation against a parent being coached by
             another parent. Those children can make
             these allegations that are very []rote, very
             rehearsed. There’s a whole lot of other factors.
             But, they can be very consistent, said exactly
             the same way, answered the questions the
             same way. That, also, can create a little bit of
             a flag just as inconsistent statements can
             create a yellow flag. That things are []rote and
             rehearsed make us be a little bit concerned
             about possible coaching at times. So, we want


                                     47
               to understand can the child discuss something
               like they’re pulling it from actual memory. So,
               it, what we call it is free-narrative. The ability
               to talk about something while you’re thinking
               about it as if you’re kind of describing it as it’s
               happening. That free-narrative is what most
               Forensic Interviewers are trying to get a child
               to do. Because that means they’re retrieving
               their memory.

               And, and, and it, and you have to be careful
               with these very narrow, rigid, []rote, rehearsed
               allegation[s]. Particularly, if it’s happening in
               high conflict of a divorce.

¶ 79   Ms. Young’s responses were similar to those given in Wittrein,

  where our supreme court concluded that the error did not

  necessitate reversal under a plain error standard. There, the expert

  testified on cross-examination that she did not know with “one

  hundred percent certainty” that the victim was telling the truth.

  Wittrein, 221 P.3d at 1082. The supreme court concluded, based

  upon this, “the jury could not interpret her testimony as an opinion

  that [the victim] was telling the truth, and her response did not

  affect the fairness of the trial,” and, therefore, there was no plain

  error. Id.

¶ 80   Here, Ms. Young never told the jurors that they should

  disregard inconsistency in assessing credibility. Instead, she told



                                       48
  them that inconsistency is one factor among many that they should

  consider. In this regard, her testimony wasn’t all that different from

  the stock jury instruction on credibility. See COLJI-Crim. E:05

  (2017) (“Consider how the testimony of the witness is supported or

  contradicted by other evidence in the case. You should consider all

  facts and circumstances shown by the evidence when you evaluate

  each witness’s testimony.”).

¶ 81   In short, although I conclude that the trial court erred in

  permitting the three questions discussed above to be posed to Ms.

  Young, based upon the answers she gave, I also conclude that the

  admission of her testimony did not so undermine the fundamental

  fairness of the trial itself so as to cast serious doubt on the

  reliability of the judgment of conviction. Accordingly, I agree with

  the majority that reversal is not warranted.

                       B.   Misuse of Hypotheticals

¶ 82   Following A.P.’s initial outcry, she began to see a therapist.

  A.P.’s grandmother was present for a portion of some of those

  therapy sessions. A.P.’s grandmother testified that during one of

  the therapy sessions she was present for, A.P. told her and the

  therapist that Short had anally penetrated her with his finger and


                                     49
  that he made her dance naked for him. But at trial, A.P. testified

  that Short had only touched her outside of her clothing and never

  mentioned the allegation of naked dancing. By the time Ms. Young

  took the stand, the jury had heard both the grandmother’s

  testimony about what A.P. had told her at the therapist’s office and

  A.P.’s testimony denying that Short had touched her inside of her

  clothing and omitting any reference to naked dancing.

¶ 83   The prosecutor posed two carefully tailored hypotheticals to

  Ms. Young:

            [Prosecutor:] Let’s use an example. Say a child
            in a clinical environment, meeting with a
            [t]herapist that they now have a relationship
            with, is able to disclose anal penetration; but
            not able to do so in a courtroom. Would that
            be surprising to you?

            [Ms. Young:] No. Actually, that’s, those are the
            cases, the couple of cases that I’ve had where
            kids couldn’t testify to that. I think that is a
            very, very difficult one for children to disclose
            and to testify to. The other ones that are
            difficult for children to disclose and testify to
            are the things that they did. So, if they were
            involved in a sexually abusive situation where
            they performed some sort of sexual act, those
            are much more difficult for them to talk about
            than the sexual acts that were perpetrated
            onto them. And [indiscernible] rectal or anal
            penetration is a very difficult one for kids to
            disclose and, and to testify to.


                                   50
            [Prosecutor:] What about a disclosure about
            naked dancing? Would that be the kind of
            disclosure where the child’s involved in the
            sexual act, but may have a difficult time
            voicing that in the courtroom, although, not in
            the clinical environment?

            [Ms. Young:] That would be one of those,
            because the behavior is theirs as compared to
            the [o]ffender behaving towards them. That
            would be a behavior like if you’re talking about
            a sexual dance or dancing without clothes on
            or something like that. Then, that goes back
            to that greater shame and difficulty in things
            that they have, actually, done. It’s harder to
            discuss.

¶ 84   Short contends that the testimony elicited in response to these

  carefully tailored hypotheticals constituted improper opinion

  testimony that A.P. was telling the truth on a particular occasion.

  Like the questions discussed in the previous section, Short did not

  object to these questions either, so again we review for plain error.

  The majority, persuaded by a pair of cases from our court,

  concludes that there was nothing improper about these

  hypotheticals. While I am not necessarily persuaded that those

  cases were correctly decided, I would still conclude — based on the

  same cases relied on by the majority — that if admission of this

  testimony was error, it was not obvious.



                                    51
¶ 85   The two carefully tailored hypotheticals afforded Ms. Young

  the opportunity to explain away a critical inconsistency between

  A.P.’s outcry and her trial testimony. It is one thing for a blind

  expert to explain generally how different settings can affect some

  children’s comfort level and, in turn, their ability or willingness to

  provide details of abuse. But it is quite another to tailor

  hypotheticals to the facts of the particular case, and then ask the

  expert whether under those particular circumstances it would

  “surprise” her that a child would be unable to testify to those

  particular details at trial even though she was able to discuss them

  previously.

¶ 86   It would have been clearly improper for the prosecutor to ask

  A.P.’s therapist whether she would have been “surprised” if A.P. was

  not able to testify at trial to the abuse that she had disclosed to her

  in therapy. See Venalonzo, ¶¶ 35-37. Such testimony, in my view,

  would have been tantamount to vouching for the reliability of the

  child’s out-of-court report over the child’s trial testimony. Thus, I

  cannot see how it would be permissible. Cf. Eppens, 979 P.2d at 18

  (holding that it was error to permit the social worker who

  interviewed the child to testify that she felt that the child’s report


                                     52
  was “sincere”); Tevlin v. People, 715 P.2d 338, 341 (Colo. 1986)

  (holding that social worker’s testimony that he believed the child

  victim was telling the truth was improper because it failed to refer

  to the witness’ general character for truthfulness and instead went

  to the witness’ truthfulness on a specific occasion). In my view,

  laundering such an inquiry through a blind expert should not

  render it permissible.

¶ 87   Relying on Mintz and Morrison, the majority concludes that

  there was nothing improper about these hypotheticals. Supra

  ¶¶ 15-16. As the majority correctly notes, both of these opinions

  seem to authorize — or at least vest the trial court with broad

  discretion to permit — the use of closely tailored hypotheticals. See

  Morrison, 985 P.2d at 5 (approving a hypothetical question that

  “contained facts substantially identical to those disclosed by the

  evidence” on the basis that “[t]he expert’s opinion that such actions

  are typical of the method of empowerment used by young male

  victims was admissible under CRE 702 to explain that such

  accusations and later denials by such a victim are not necessarily

  unusual”); Mintz, 165 P.3d at 831 (“When testifying as to the typical

  behavioral traits of an abused child, the expert may respond to


                                    53
  hypothetical questions involving the facts of the case at hand.”).

  For the reasons discussed in the paragraph above, I am not

  completely persuaded that the lines drawn in Mintz and Morrison

  are the right ones.

¶ 88   But mere disagreement with Mintz and Morrison does not

  necessarily support a conclusion that the trial court committed

  plain error. “To qualify as ‘plain’ error, an error must be so clear-

  cut, so obvious, that a trial judge should be able to avoid it without

  benefit of objection.” People v. Pollard, 2013 COA 31M, ¶ 39 (citing

  People v. Beilke, 232 P.3d 146, 152 (Colo. App. 2009)). “For an

  error to be obvious, ‘the action challenged on appeal must

  contravene (1) a clear statutory command; (2) a well-settled legal

  principle; or (3) Colorado case law.’” People v. Stroud, 2014 COA 58,

  ¶ 33 (quoting Pollard, ¶ 40).

¶ 89   “[W]here there is no case law or statute concerning a trial

  court’s alleged error, we cannot conclude that the trial court’s

  decision constituted plain error because the error would not have

  been obvious.” Id. Here, not only was there no settled authority

  indicating that such hypotheticals were improper, the limited

  authority supports a contrary conclusion. Thus, while I am not


                                    54
  convinced that the prosecution’s use of tailored hypotheticals was

  proper, I cannot conclude that the error was obvious either. See

  Relaford, ¶¶ 40-42 (declining to find obvious error on the admission

  of expert testimony where the issue had not yet been decided by a

  division of this court or our supreme court). For that reason, I

  reach the same conclusion as the majority: reversal is not

  warranted.

                            III.   Conclusion

¶ 90   Because I agree with the majority opinion in all respects

  except its assessment of Ms. Young’s testimony and because I

  conclude that improper admission of portions of Ms. Young’s

  testimony was not plain error, I too would affirm in part, vacate in

  part, and remand the case with directions for the trial court to

  correct the mittimus consistent with the views expressed in the

  majority opinion.




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