COLORADO COURT OF APPEALS                                       2017COA130


Court of Appeals No. 15CA1425
Boulder County District Court No. 14CR139
Honorable Patrick D. Butler, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Israel Heredia-Cobos,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE J. JONES
                          Fox and Freyre, JJ., concur

                         Announced October 19, 2017


Cynthia H. Coffman, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Springer and Steinberg P.C., Michael P. Zwiebel, Denver, Colorado, for
Defendant-Appellant
¶1    Defendant, Israel Heredia-Cobos, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of sexual

 assault on a child. One of the issues he raises is whether the

 district court abused its discretion in allowing a forensic interviewer

 to testify that the child victim, Y.P., didn’t appear to have been

 coached as to what to say during an interview. Though such

 testimony is usually inadmissible, we conclude that in this case the

 defense opened the door to the forensic interviewer’s testimony by

 challenging the victim’s statements on the basis that she had

 fabricated them, at least in part, because of coaching by her

 relatives and others. We also reject defendant’s other contentions,

 and therefore we affirm.

                             I. Background

¶2    Defendant is Y.P.’s great uncle. When Y.P. was nine years old,

 she spent the night at defendant’s home with other family

 members. While she was playing on the trampoline with her

 cousins, defendant came outside and said that cake was being

 served. After Y.P.’s cousins went inside the house, defendant

 pushed Y.P. down, got on top of her, and touched her breast. He




                                    1
 then tried to put his hand down her pants, but Y.P. pushed him off

 and ran inside.

¶3    Y.P. reported the assault just over four years later after a

 classmate told her that she had been raped by her father. The

 People charged defendant with a single count of sexual assault on a

 child.

                             II. Discussion

¶4    Defendant contends that the district court abused its

 discretion by (1) allowing the forensic interviewer who had

 interviewed Y.P. to testify that Y.P. didn’t show any signs of having

 been coached and (2) allowing evidence of his prior acts of a sexual

 nature involving other relatives in violation of CRE 404(b).

              A. Witness Testimony Regarding Coaching

               1. Preservation and Standard of Review

¶5    The parties agree that defendant preserved this issue.

¶6    We review the district court’s evidentiary rulings for an abuse

 of discretion. People v. Faussett, 2016 COA 94M, ¶ 33. To

 constitute an abuse of discretion, the district court’s evidentiary

 ruling must have been manifestly arbitrary, unreasonable, or




                                    2
 unfair, or based on a misunderstanding or misapplication of the

 law. Id.

                              2. Analysis

¶7    The prosecutor called Lisa Tani, a forensic interviewer, to

 testify as an expert about her interview of Y.P. (Defense counsel

 didn’t object to the prosecutor’s request that Ms. Tani be allowed to

 give expert testimony.)

¶8    Ms. Tani initially testified about how she interviews children

 generally. The prosecutor asked her whether “there are certain

 things that you are looking for or precautions that you are taking

 throughout the interview?” Ms. Tani replied, “So while we interview

 children we assess for coaching, suggestibility, . . . how trauma may

 affect their memory, . . . development, those type of things.”

¶9    The prosecutor later returned to the subject of coaching.

            Q:   Okay. You also said that you’re looking
                 for signs of suggestibility, um, and you
                 mentioned coaching, signs of coaching.
                 What signs of coaching are you talking
                 about?

            A:   So if a child has been coached, which
                 typically you will see a child being
                 coached under the age of 10, they are
                 usually coached on that specific event.
                 So a caregiver — they might overhear


                                   3
                   someone talking about an event, so they
                   will come in and just tell you about that
                   event. Typically, they don’t have the
                   sensory detail that we look for, the
                   peripheral details, and they have limited
                   information regarding that event.

¶ 10   Ms. Tani also testified that she doesn’t assess the child’s

  credibility, but when asked what she assesses during an interview

  she said, “I will assess on coaching. If I feel that . . . they were

  being suggestive, . . . I will come up and talk to the parents.”

¶ 11   The prosecutor then turned to Ms. Tani’s interview of Y.P.

             Q:    Did you — and I’m not asking you to
                   opine on her credibility, but did you see
                   any indication throughout that interview
                   of the concerns that you have just talked
                   about?

  Defense counsel objected that the question called for Ms. Tani to

  comment on Y.P.’s credibility. The prosecutor argued that such

  testimony wasn’t an opinion about credibility and pointed out that

  the defense had brought up “numerous times” at trial that Y.P. had

  made up the allegations “because she overheard gossip or . . . was

  somehow trying to fit in as a peer at school.” So, the prosecutor

  argued, the testimony was relevant to rebut that theory. The court




                                      4
  overruled the objection, reasoning that “whether signs of coaching

  were there [doesn’t go] directly to credibility or truthfulness.”

¶ 12   The prosecutor then continued questioning Ms. Tani about

  whether Y.P. appeared to have been coached.

             Q:   Okay. Ms. Tani, as I said, um, you can’t
                  opine on the credibility of the child or
                  whether you believed the child or things
                  like that. What I’m asking you is based
                  on the things that you just talked about
                  that you’re assessing during an interview,
                  did you see any indications of coaching
                  during this interview?

             A:   No, I did not.

             Q:   Or that things had been suggested?

             A:   No, I did not.

             Q:   You also talked about, um, looking for
                  sensory details and peripheral details
                  throughout the interview. Did you
                  observe [Y.P.] make details that are
                  peripheral in this case?

             A:   Yes, I did.

¶ 13   Ms. Tani then testified as to the various details Y.P. told her

  about during the interview, such as whom she was with, what she

  was doing (playing on the trampoline), the smell of defendant’s

  breath, and how cold it was outside.



                                      5
¶ 14   It doesn’t appear that defendant challenges Ms. Tani’s

  testimony about how she interviews children, including that she

  looks for signs of coaching. Instead, he focuses on Ms. Tani’s

  testimony that she didn’t see any indications that Y.P. had been

  coached. We conclude that although such testimony ordinarily is

  improper (because it’s tantamount to vouching for the child’s

  credibility), in this case the testimony was admissible to rebut

  defendant’s theory of defense. See People v. Quintana, 882 P.2d

  1366, 1375 (Colo. 1994) (erroneous admission of evidence under a

  rule of evidence not reversible where evidence was admissible for a

  different reason); People v. Pernell, 2014 COA 157, ¶ 36 (an

  appellate court may affirm a district court’s ruling allowing evidence

  on any ground supported by the record) (cert. granted on other

  grounds Aug. 31, 2015).

¶ 15   “[E]xperts 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). Expert testimony regarding typical behavior of abused

  children is admissible only if it addresses “general characteristics

  evidence which (1) relates to an issue apart from credibility and (2)


                                    6
  only incidentally tends to corroborate a witness’s testimony.”

  People v. Cernazanu, 2015 COA 122, ¶ 20.

¶ 16   Although Ms. Tani didn’t explicitly say that Y.P. was being

  “truthful,” by opining that Y.P. didn’t show any indication of having

  been coached, she conveyed the impression that she thought Y.P.

  was being truthful. Ordinarily, such testimony shouldn’t be

  allowed. See People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999)

  (error to admit social worker’s testimony that she felt the child

  sexual abuse victim “was sincere” in her forensic interview); People

  v. Snook, 745 P.2d 647, 649 (Colo. 1987) (social worker’s testimony

  that children tend not to fabricate stories of sexual abuse was

  inadmissible because it went to the witness’s truthfulness on a

  particular occasion); Cernazanu, ¶¶ 16-23 (district court erred in

  allowing mother’s testimony that child victim didn’t engage in her

  typical “lying” behavior when she reported sexual assault by the

  defendant; such testimony “necessarily implied” that mother

  thought the victim hadn’t lied); People v. Bridges, 2014 COA 65,

  ¶ 16 (interviewer’s testimony that child victims “had not been

  coached constituted conclusions about their truthfulness in their

  respective interviews” and was therefore inadmissible opinion).


                                     7
¶ 17   We aren’t persuaded to the contrary by the People’s assertion

  that testifying that a child didn’t show signs of having been coached

  is not the same as testifying that the child hasn’t been coached, and

  therefore isn’t an assessment of the child’s credibility. The subtle

  distinction urged by the People is likely to be lost on ordinary

  jurors; rather, ordinary jurors, putting two and two together, are

  likely to glean from such testimony that the interviewer believed the

  child hadn’t been coached.

¶ 18   Nor are we persuaded by the People’s argument that Ms.

  Tani’s testimony was admissible under CRE 608. While CRE 608(a)

  sometimes allows a witness to present evidence of another witness’s

  character for truthfulness, it doesn’t allow a lay or expert witness to

  testify that “another witness was telling the truth on a specific

  occasion.” Wittrein, 221 P.3d at 1081 (emphasis added); see also

  People v. Lopez, 129 P.3d 1061, 1066 (Colo. App. 2005) (“[A]

  witness’s or prosecutor’s personal opinion on the credibility of

  witnesses intrudes upon the province of the jury to make credibility

  determinations.”). Because Ms. Tani testified to Y.P.’s truthfulness

  on a specific occasion (during her interview), and not generally, the

  testimony at issue wasn’t admissible under CRE 608. See People v.


                                     8
  Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (“CRE 608(a) would have

  permitted the prosecuting attorney to elicit on direct examination of

  [the witness] her opinion only as to [the child victim]’s general

  character for truthfulness, but not, as here, the [witness]’s opinion

  that [the child victim] was speaking the truth on a particular

  occasion.”).

¶ 19   But that doesn’t end our analysis concerning admissibility.

  For in this case, the record shows that defendant opened the door

  to the otherwise inadmissible testimony.

¶ 20   A party may open the door to otherwise inadmissible evidence

  by presenting incomplete evidence on a subject. “The concept of

  ‘opening the door’ represents an effort by courts to prevent one

  party in a criminal trial from gaining and maintaining an unfair

  advantage by the selective presentation of facts that, without being

  elaborated or placed in context, create an incorrect or misleading

  impression.” People v. Murphy, 919 P.2d 191, 195 (Colo. 1996)

  (citing People v. Miller, 890 P.2d 84, 98-99 (Colo. 1995)). Once a

  party opens the door, the opponent may inquire into the otherwise

  inadmissible matter. Golob v. People, 180 P.3d 1006, 1012-13

  (Colo. 2008) (district court erred by allowing the People’s expert to


                                     9
  testify extensively on the defense expert’s conclusions but then

  unduly limiting the defense expert’s testimony on the subject).

¶ 21     As defendant essentially concedes,1 at trial he relied on

  theories that (1) Y.P.’s family members coached her on the details of

  the sexual assault and (2) Y.P. fabricated the allegation when she

  saw that her friend had received attention at school after reporting

  that she had been sexually abused.




  1   Defendant’s reply brief says,

               Defendant argued that, after K.R. told Y.P. that
               she had been raped by her father, Y.P.
               responded by telling K.R. “I was raped too, to
               make her feel better.” When K.R. herself told a
               school counselor what Y.P. had said, and when
               the counselor called Y.P.’s parents, Y.P. was
               unable to back out and had to continue with
               her story. Defense counsel likened Y.P.’s
               situation to a freight train that had started to
               roll downhill, a train that Y.P. had become
               unable to stop, even though she at times tried
               “to put the brakes on this train that’s rolling
               downhill.” In reluctantly maintaining her story,
               defense counsel argued, Y.P. at times may have
               been influenced by other family members, and
               may have adopted certain details they
               suggested.

  (Emphasis added.)


                                      10
¶ 22   Defense counsel initially presented these theories in opening

  statement:

            [Y.P.’s friend] received attention in that school
            . . . [a]nd so, lo and behold, they get this house
            just chuck full of people who are going to
            testify here, and they are all in that house
            together just waiting. And, of course, I’ll ask
            them, you know, [w]ere you talking about the
            case? And I suspect they will say, [n]o, we
            weren’t talking about the case, but they are all
            sitting in that house waiting for [the detective]
            to come down to talk to them.2

¶ 23   And defense counsel pursued these theories throughout trial.

  During cross-examination of Y.P., defense counsel asked her if she

  had practiced her testimony with the district attorney, if the women

  in her family liked to gossip about other family members, what

  “bad” things she had heard defendant had done, and whether she

  had talked with other family members about the incident just

  before she was interviewed. He also elicited Y.P.’s testimony that

  her cousin had reminded her of various details of the day of the


  2 Other divisions of this court have held that defense counsel’s
  remarks in opening statement may open the door to otherwise
  inadmissible evidence. People v. Pernell, 2014 COA 157, ¶ 40 (cert.
  granted Aug. 31, 2015); People v. Davis, 312 P.3d 193, 196-97
  (Colo. App. 2010), aff’d on other grounds, 2013 CO 57. Of course,
  in this case, defense counsel also raised the coaching accusation
  through cross-examination of witnesses.

                                    11
  incident. And he repeatedly underscored inconsistencies in Y.P.’s

  reports (including why the children had been called inside

  immediately prior to the assault, the nature and extent of the

  touching by defendant during the assault, and that none of the

  three cousins Y.P. testified to telling immediately after the assault

  could remember such a conversation). He specifically asked each of

  Y.P.’s cousins if numerous family members were together in the

  house before the detective came to talk to them. All of this was

  clearly intended to suggest to the jurors that Y.P. had fabricated her

  allegations, at least partly as a result of coaching by family

  members and the district attorney. And all of this occurred before

  Ms. Tani testified.

¶ 24   Courts in other jurisdictions have held that by challenging a

  child witness’s credibility by suggesting that the witness had been

  coached, the defense opens the door to testimony that the witness

  didn’t appear to have been coached. Sampson v. State, 38 N.E.3d

  985, 991-92 (Ind. 2015) (testimony by an interviewer as to whether

  a child witness showed signs of having been coached is admissible

  if the defendant opens the door by suggesting that the child had

  been coached); State v. Champagne, 305 P.3d 61, 67 (Mont. 2013)


                                    12
(expert’s testimony that she didn’t see any signs that the child

victim had been coached was admissible where the defendant had

implied that the child had been coached); State v. Baymon, 446

S.E.2d 1, 4 (N.C. 1994) (“[D]efense counsel . . . attempted to leave

the impression that the victim had been coached by her relatives or

social workers involved in the case. This attempt opened the door

for the State on redirect to reestablish the reliability of the

videotaped interview by proffering [the witness]’s testimony that she

did not perceive that the victim had been told what to say or

coached.”); see also People v. Jefferson, 2014 COA 77M, ¶ 39

(“Unless defendant were to somehow ‘open the door,’ the

prosecution’s expert should not opine that a forensic interviewer’s

job is to determine whether or not a child is telling the truth.”),

aff’d, 2017 CO 35; cf. Venalonzo v. People, 2017 CO 9, ¶ 44 (by

asking a detective whether, in his experience, children make things

up, defense counsel opened the door to the detective’s otherwise

inadmissible testimony that, in his experience, children only make

up trivial stories, not serious accusations). We agree with those

courts’ straightforward application of the opening the door

principle. And so we conclude that defense counsel opened the


                                   13
  door to Ms. Tani’s testimony by suggesting that Y.P. had been

  coached.

¶ 25   In sum, though we disagree with the district court’s reason for

  allowing Ms. Tani’s testimony, we conclude that her testimony was

  nonetheless admissible. Therefore, the district court didn’t abuse

  its discretion.

                               B. Prior Acts

¶ 26   Over defense counsel’s objection, the district court allowed the

  prosecutor to introduce evidence of defendant’s prior sexually

  related acts involving F.V. (Y.P.’s mother), E.V. (defendant’s niece),

  and N.C. (also defendant’s relative). The court told the jurors they

  could consider the evidence only as it served to refute a defense of

  recent fabrication or of impossibility; as it bore on defendant’s

  mental state, knowledge, or intent; as it tended to show absence of

  mistake or accident; or as it tended to show defendant acted “for

  the purpose of sexual arousal, gratification, or abuse.”

  Defendant contends that these other acts were too dissimilar to his

  alleged assault of Y.P. to be admissible under the applicable rule

  and statute. We don’t agree.




                                    14
        1. Preservation, Applicable Law, and Standard of Review

¶ 27   The parties agree that defendant preserved this issue.

¶ 28   CRE 404(b) prohibits the admission of evidence about a

  defendant’s prior acts when offered to show his bad character and

  that he acted in conformity with that character. Kaufman v. People,

  202 P.3d 542, 552 (Colo. 2009). But other act evidence is

  admissible for other reasons, including to show “proof of motive,

  opportunity, intent, preparation, plan, knowledge, identity, or

  absence of mistake or accident.” CRE 404(b); see also § 16-10-

  301(3), C.R.S. 2017 (in sexual offense prosecutions, the People may

  introduce other act evidence for similar purposes).

¶ 29   Before admitting evidence under CRE 404(b) or section 16-10-

  301, the court must determine that (1) the evidence relates to a

  material fact; (2) the evidence is logically relevant; (3) the logical

  relevance is independent of the intermediate inference that the

  defendant was acting in conformity with his bad character; and (4)

  the evidence has probative value that is not substantially

  outweighed by the danger of unfair prejudice. Kaufman, 202 P.3d




                                      15
  at 552; People v. Snyder, 874 P.2d 1076, 1078 (Colo. 1994); People

  v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).3

¶ 30   Because the district court has substantial discretion in

  determining whether other act evidence is admissible, we won’t

  overturn the court’s decision unless it’s manifestly arbitrary,

  unreasonable, or unfair. Kaufman, 202 P.3d at 553. And, because

  defendant preserved this issue, if we determine that the court

  abused its discretion, we review any error for harmless error.

  Yusem v. People, 210 P.3d 458, 469 & n.16 (Colo. 2009); People v.

  Munoz, 240 P.3d 311, 319 (Colo. App. 2009). An error is harmless

  unless there is a reasonable probability that it contributed to a

  defendant’s conviction by substantially influencing the verdict or

  impairing the fairness of the trial. Yusem, 210 P.3d at 469; People

  v. Rincon, 140 P.3d 976, 979-80 (Colo. App. 2005).




  3 The court must also determine that the defendant, more likely
  than not, committed the other act. Kaufman v. People, 202 P.3d
  542, 552-53 (Colo. 2009). Defendant doesn’t raise any issue about
  this requirement.

                                    16
                                2. Analysis

                     a. Acts Involving F.V. and N.C.

¶ 31   F.V. testified that when she was twenty-six years old, she was

  in a car with defendant when he touched her thigh and told her he

  “could take her to heaven” like her husband could not.

¶ 32   N.C. testified that she had lived with defendant briefly when

  she was nineteen years old. On multiple occasions, while family

  members were nearby, defendant approached her from behind,

  grabbed her, and tried to kiss her. She also testified that on one

  occasion defendant grabbed her from behind, touched her breasts

  and “below her stomach,” and pressed his erect penis against her.

¶ 33   This evidence related to the material fact of whether defendant

  “knowingly subject[ed] another not his or her spouse to any sexual

  contact.” § 18-3-405(1), C.R.S. 2017 (defining sexual assault on a

  child); see also Spoto, 795 P.2d at 1318; People v. Villa, 240 P.3d

  343, 351 (Colo. App. 2009).

¶ 34   It also met the second prong of the Spoto test. Evidence is

  logically relevant if it has any tendency to make the existence of a

  material fact more or less probable than it would be without the

  evidence. CRE 401; see Yusem, 210 P.3d at 463. The evidence that


                                    17
  defendant physically assaulted F.V. and N.C., two relatives who

  lived with him, made it more probable that defendant’s intent was

  to sexually assault another female relative at his home. People v.

  Martinez, 36 P.3d 154, 159 (Colo. App. 2001) (other act evidence

  was logically relevant because “it had a tendency to make [the]

  defendant’s intent to commit [the charged] crimes and the victim’s

  lack of consent or lack of recent fabrication more probable with the

  evidence than without it”). And the other acts evidence was also

  relevant to rebut defendant’s theory of defense that Y.P. fabricated

  the allegation. See id.; see also People v. Orozco, 210 P.3d 472,

  477-78 (Colo. App. 2009); People v. Victorian, 165 P.3d 890, 893

  (Colo. App. 2007).

¶ 35   We are not persuaded by defendant’s argument that F.V. and

  N.C.’s ages or sexual maturity render these prior acts too dissimilar

  to the act alleged in this case to make them relevant. “CRE 404(b)

  contains no separate requirement of similarity.” People v. Rath, 44

  P.3d 1033, 1041 (Colo. 2002). Although similarity may be

  necessary to give the evidence probative force if admitted for certain

  purposes, see id. at 1042, “it is not essential that the means of

  committing the other crimes replicate in all respects the manner in


                                    18
  which the crime charged was committed.” People v. Garner, 806

  P.2d 366, 375 (Colo. 1991). In any event, the differences in the

  ages of the victims are offset by other similarities of the acts —

  specifically, that defendant sexually assaulted female family

  members, and did so in similar ways.4

¶ 36   We also conclude the acts have relevance aside from any

  inference of propensity. This prong of the Spoto test doesn’t

  demand the absence of the propensity inference, but requires only

  that the evidence be logically relevant for a reason independent of

  that inference. Snyder, 874 P.2d at 1080; Villa, 240 P.3d at 352.

  As discussed, the evidence was probative of defendant’s intent and

  his method of seeking sexual gratification from women to whom he

  had access because they were relatives who lived or stayed in his

  home. It was also probative to refute defendant’s claim that Y.P.

  fabricated the allegation.

¶ 37   Lastly, we must consider whether the probative value of the

  evidence was substantially outweighed by the danger of unfair

  prejudice. In assessing the probative value of the evidence, we


  4And as to N.C., defendant allegedly assaulted her while she was
  near other relatives, just as Y.P. alleged in this case.

                                    19
  must evaluate the evidence’s “incremental” probative value — what

  weight the evidence adds to the prosecution’s case. Rath, 44 P.3d

  at 1041. In doing so, we weigh “‘the logical force of the evidence

  and the proponent’s need for the evidence,’ in light of other

  available evidence.” Id. (quoting Martin v. People, 738 P.2d 789, 794

  (Colo. 1987)). We then must balance the evidence’s incremental

  probative value against the danger of unfair prejudice, “afford[ing]

  the evidence the maximum probative value attributable by a

  reasonable fact finder and the minimum unfair prejudice to be

  reasonably expected.” Id. at 1043.

¶ 38   Prior act evidence in sexual assault cases often has the

  potential for unfair prejudice. But we’re mindful that the General

  Assembly has declared that “normally the probative value of [other

  sexual misconduct] evidence will outweigh any danger of unfair

  prejudice, even when incidents are remote from one another in

  time.” § 16-10-301(1).

¶ 39   Given that Y.P.’s testimony was the only direct evidence of

  defendant’s guilt, the other act evidence was especially relevant.

  See Rath, 44 P.3d at 1043 (“[W]here disputed testimony of the

  victim is the only direct evidence of the commission of the guilty


                                    20
  act, additional evidence that is probative of that fact may have

  particular ‘marginal’ or ‘incremental’ probative value.”). And while

  there was some potential for unfair prejudice, that potential didn’t

  outweigh the evidence’s substantial probative value. See People v.

  Mata, 56 P.3d 1169, 1173-74 (Colo. App. 2002) (probative value of

  evidence that the defendant digitally penetrated and fondled his

  daughter on multiple occasions, which was admitted to show intent

  and to refute a defense of fabrication by the victim, outweighed

  danger of unfair prejudice); People v. Duncan, 33 P.3d 1180, 1183-

  84 (Colo. App. 2001) (evidence that the defendant previously took

  three young men to secluded areas to have sexual contact with

  them would not “inflame the emotions of the jurors to reach an

  irrational decision”).5

¶ 40   Therefore, we conclude that the district court didn’t abuse its

  discretion by admitting the evidence of defendant’s acts involving

  F.V. and N.C.



  5 We also observe that the court provided appropriate limiting
  instructions prior to the introduction of the evidence. See, e.g.,
  People v. Roy, 723 P.2d 1345, 1348 (Colo. 1986) (“In the absence of
  a showing to the contrary, we presume the jury understood and
  followed the instructions.”).

                                    21
                          b. Acts Involving E.V.

¶ 41   The evidence regarding defendant’s acts involving E.V. was

  somewhat different from that of the acts involving F.V. and N.C.

  E.V., defendant’s niece, lived with him when she was seventeen

  years old. She testified that on four or five occasions, defendant

  masturbated while standing in the bedroom where she and

  defendant’s two daughters were sleeping.

¶ 42   Unlike defendant’s prior acts involving F.V. and N.C., he did

  not touch E.V. But his prior acts involving E.V. shared some

  similarities with the assault alleged by Y.P. Specifically, both

  involved female family members in his house, and E.V.’s age was

  closer to Y.P.’s than was F.V.’s or N.C.’s. On balance, the acts

  involving E.V. were as relevant as those involving F.V. and N.C.,

  and the evidence of those acts was no more potentially prejudicial

  than the evidence of the acts involving F.V. and N.C. So this

  evidence likewise satisfied the four-part Spoto test.

¶ 43   But even if we assume the district court erred in allowing this

  evidence, we conclude that any error was harmless. The harmless

  error analysis requires “an inquiry into whether, viewing the

  evidence as a whole, the contested evidence substantially


                                    22
  influenced the verdict or affected the fairness of the trial

  proceedings.” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).

  We will disregard an evidentiary error if there is no “reasonable

  possibility that it contributed to the jury’s guilty verdict.” Id.

¶ 44   Because the district court properly admitted evidence of

  defendant’s other prior acts involving family members F.V. and

  N.C., we conclude that there was no reasonable possibility that, had

  the evidence about E.V. been excluded, the outcome of the case

  would have been different.

                               III. Conclusion

¶ 45   The judgment is affirmed.

       JUDGE FOX and JUDGE FREYRE concur.




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