     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
                                                                June 11, 2020

                                2020COA89

No. 17CA0042, People in the Interest of D.F.A.E. — Juvenile
Court — Delinquency; Juries — Voir Dire — Juror Bias —
Challenges for Cause — Peremptory Challenges

     The juvenile defendant was adjudicated delinquent for acts

that, if committed by an adult, would constitute sexual assault and

enticement of a child. On appeal, a division of the court of appeals

considers whether the juvenile court abused its discretion in not

excusing a juror who voluntarily disclosed relevant, personal

information after voir dire but before trial. Applying the factors set

forth in People v. Christopher, 896 P.2d 876 (Colo. 1995), the

division concludes that it did not. In doing so, the division further

concludes that under People v. Novotny, 2014 CO 18, and Vigil v.

People, 2019 CO 105, the loss of a peremptory challenge resulting
from a juror’s late disclosure is not so presumptively prejudicial as

to require reversal.

     The division further rejects the juvenile defendant’s

contentions that the juvenile court reversibly erred when it

admitted limited evidence of the victim’s virginity and excluded

evidence that the victim was allegedly seeking to lose her virginity.

Finally, the division concludes any error in the admission of

improper expert testimony that bolstered the victim’s credibility was

harmless.

     Accordingly, the division affirms the adjudication.
COLORADO COURT OF APPEALS                                         2020COA89


Court of Appeals No. 17CA0042
Park County District Court No. 15JD20
Honorable Stephen A. Groome, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.F.A.E.,

Juvenile-Appellant.


                                JUDGMENT AFFIRMED

                                  Division VI
                           Opinion by JUDGE DUNN
                         Richman and Yun, JJ., concur

                               Announced June 11, 2020


Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1    D.F.A.E. (D.E.) and the victim had a sexual encounter. He

 said it was consensual. She said it wasn’t. The jury agreed with

 the victim on this point, and the juvenile court adjudicated D.E.

 delinquent for acts that, if committed by an adult, would constitute

 sexual assault and enticement of a child.

¶2    Appealing his adjudication, D.E. challenges several of the

 juvenile court’s discretionary decisions. Among those, he

 concentrates on the decision to retain a juror who, he contends,

 intentionally withheld material information during voir dire. He

 insists that this requires reversal, in part because it cost him the

 ability to challenge the juror for cause or, in the alternative,

 exercise a peremptory challenge.

¶3    Because the record supports the juvenile court’s findings that

 the juror didn’t intentionally withhold information and that she

 could be fair and impartial, we can’t conclude either that a biased

 juror sat on the jury or that the juvenile court abused its discretion

 by retaining the juror. And in light of the shift in precedent that

 now no longer presumes prejudice from the loss of a peremptory

 challenge, we also can’t agree with D.E. that the loss of such a

 challenge requires reversal.


                                    1
¶4    As to D.E.’s remaining contentions, because they challenge

 rulings that were either within the juvenile court’s discretion or

 harmless, we reject those as well. Therefore, we affirm the

 adjudication.

                           I.    Background

¶5    Late one night in the summer of 2015, the victim asked D.E.,

 who went to school with the victim’s sister, for a ride to a friend’s

 house. D.E. agreed, and while en route, he allegedly threatened the

 victim with a pocketknife and forced her to perform oral sex. He

 then told her to take off her clothes, sexually assaulted her, and

 again forced her to perform oral sex. After this, D.E. drove the

 victim back to her home, where she reported the assault to friends

 and family. The victim’s mother took her to a hospital for a sexual

 assault examination, and the police were contacted.

¶6    The prosecution charged D.E. as a delinquent with one count

 of sexual assault (deadly weapon), one count of sexual assault, one

 count of enticement of a child, one count of menacing, and two

 sentence enhancers.

¶7    At trial, D.E. defended on the theory that the entire encounter

 was consensual and that he never used a deadly weapon. The jury


                                    2
  rejected his consent defense and found him guilty of enticement

  and one sexual assault count. But the jury acquitted him of both

  counts requiring proof of a deadly weapon.

¶8     The juvenile court adjudicated D.E. delinquent and sentenced

  him to six months in jail on the sexual assault count and six years

  of sex offender intensive supervision probation on the enticement

  count.

                          II.   Juror Removal

¶9     D.E. first argues that the juvenile court committed reversible

  error by not excusing a juror who, he alleges, intentionally withheld

  material information during voir dire. We are not persuaded.

                         A.     Additional Facts

¶ 10   Before voir dire, all prospective jurors completed a written

  questionnaire that included these questions, among others:

            [Question 3:] Have you (or anyone you are
            close to) ever been the victim of a crime? What
            type of crime? Was the crime related to sexual
            assault, sexual contact, or rape? In what
            jurisdiction? When? Were charges ever filed?

            ....

            [Question 6:] Have you ever been involved in
            providing any type of care or services for
            alleged victims of sexual assault[,] sexual
            contact, or rape?

                                    3
  If a prospective juror answered Question 3 “yes,” that juror was

  then asked to “describe how this has affected your feelings about

  sexual assault, sexual contact, or rape?” The questionnaire also

  provided each prospective juror the option to discuss his or her

  answers “in a private place, outside the presence of other potential

  jurors.”

¶ 11   Juror N answered “no” to both questions and did not check

  the box to indicate that she wanted to privately discuss her

  answers. Neither the prosecution nor the defense questioned Juror

  N much during voir dire, and Juror N was ultimately selected to

  serve on the jury.

¶ 12   Right after the jury was sworn and the court was about to

  dismiss the jurors for the day, Juror N indicated she needed to

  speak to the court and counsel. She then stated:

             I’m sorry that I haven’t said anything sooner. I
             just felt like I didn’t really have a chance. But
             I did say and I did swear and I believe innocent
             until proven guilty. I believe in a fair justice
             system and I’m in this all the way, but I’m just
             an emotional person.

             About 27 years ago my daughter was date
             raped. She was 14 and she was seeing a boy
             17, kind of without our permission. Anyway,
             we just (inaudible) said no. She did get


                                     4
             pregnant, we gave the child up for adoption.
             We all grew from this. It was actually — we all
             grew from it. It was a good experience because
             it was a family and we have a beautiful —
             there’s a wonderful woman out there now and
             she’s living a wonderful life. That’s all I
             wanted to say.

             It doesn’t — no honestly, Judge, it does not
             affect me because I have also raised four boys,
             and one of my sons when he was in college,
             one of the girls wanted to accuse him of getting
             her pregnant and he said, “Mother, I did not.”
             And he had to have a patern[ity] test done to
             prove that. It was DNA to prove he was
             innocent and of course he was innocent, it was
             not his child.

             So raising four boys and having a daughter, I
             understand both sides. I understand how
             teenagers think and the way they are. So this
             isn’t going to affect this young man at all. I
             look to him as innocent until I receive all the
             — and that’s just wanted [sic] to say. I
             apologize for not saying anything sooner.

¶ 13   In response to a question from the court, Juror N stated, “I

  absolutely still believe in a fair trial for this young man.” Explaining

  her response to Question 3 on the questionnaire, she said that “we

  didn’t press any charges,” “we didn’t prosecute him,” and she

  “didn’t look at it as a crime I guess.”1 And when defense counsel



  1 Neither the court nor the parties asked about Question 6 on the
  questionnaire.

                                     5
  asked why she hadn’t disclosed this information earlier, she

  responded:

             I guess because you didn’t ask and you kept
             asking all these other people and I didn’t want
             to raise my hand and be embarrassed and
             have everybody look at me like what is she
             going to stand up there for. So I was a little
             embarrassed.

  Then, when responding to defense counsel’s question whether she

  could be fair and presume D.E. innocent given her history, and

  whether as a parent she would want herself on the jury, she said

  that “[a]ny parent would be worried if that was their child,” but

  reiterated that “it will not affect me, truthfully. Honestly.”

¶ 14   After this exchange, the court said it would revisit the issue

  the next day but that Juror N was “still an active juror.” The next

  morning, defense counsel asked for a mistrial or to replace Juror N

  with the alternate.

¶ 15   The court denied both requests, finding that Juror N was “very

  credible,” didn’t intentionally withhold information, and could “be a

  fair and very unbiased juror.” The court also stated that because it

  saw no “bias” or “just cause” to dismiss Juror N, replacing her with

  an alternate would be “outside the scope” of the court’s authority.



                                     6
              B.   Standard of Review and Governing Law

¶ 16   Because the juvenile court is in the best position to evaluate

  whether a juror is unable to serve, we review for an abuse of

  discretion the court’s decision to not excuse a juror. People v.

  Christopher, 896 P.2d 876, 879 (Colo. 1995); People v. Drake, 841

  P.2d 364, 367 (Colo. App. 1992). We will not disturb that decision

  unless it was manifestly arbitrary, unreasonable, or unfair, or

  misapplied the law. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004).

¶ 17   “A new trial may be required where a juror deliberately

  misrepresents or knowingly conceals information relevant to a

  challenge for cause or a [peremptory] challenge.” Christopher, 896

  P.2d at 878; see People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983)

  (“[K]nowing concealment is itself evidence that the juror was likely

  incapable of rendering a fair and impartial verdict in the matter.”).

  But if a juror’s failure to disclose was inadvertent, the defendant

  must demonstrate that the undisclosed information “was such as to

  create an actual bias either in favor of the prosecution or against

  the defendant.” Dunoyair, 660 P.2d at 896. Absent a showing that

  the juror was actually biased, we must assume that she followed




                                     7
  the court’s instructions and decided the case based solely on the

  evidence and the law. Christopher, 896 P.2d at 879.

¶ 18   A juror’s failure to answer material questions truthfully during

  voir dire may justify — but does not automatically require — the

  removal of that juror and replacement with an alternate. People v.

  Borrelli, 624 P.2d 900, 903 (Colo. App. 1980); see also Dunoyair,

  660 P.2d at 895. In deciding whether it should dismiss and replace

  a juror under these circumstances, a court should consider: (1) the

  juror’s assurance of impartiality; (2) the nature of the information

  withheld during voir dire; (3) whether the nondisclosure was

  deliberate; (4) any prejudicial effect the nondisclosed information

  would have had on either party, including the defendant’s right to

  exercise peremptory challenges; and (5) the practical remedies

  available when the nondisclosure is revealed. Christopher, 896 P.2d

  at 879. Ultimately, however, removal is required if the court finds

  actual prejudice or bias. See People v. Clemens, 2017 CO 89, ¶ 15.

                            C.    Discussion

¶ 19   Applying the Christopher factors here, we conclude that the

  juvenile court properly exercised its discretion when it allowed

  Juror N to continue to serve on the jury.


                                    8
                             1.    Impartiality

¶ 20   First, Juror N repeatedly stated that she would be impartial,

  that the experiences her daughter and son went through would not

  affect her, and that she believed in “innocent until proven guilty.”

  Though defense counsel questioned Juror N, none of her responses

  undermined her assurances that she could be fair and impartial.

  Nor did they suggest that she harbored any prejudice or bias

  against D.E. or favored the victim. When asked directly, she

  assured the court that she “absolutely still believe[d] in a fair trial

  for” D.E. The record thus supports the court’s finding that Juror N

  could be fair and unbiased. And given that “[t]he [juvenile] court is

  in the best position to view the demeanor of a juror claiming

  impartiality,” we won’t disturb its impartiality determination.

  Christopher, 896 P.2d at 878.

                        2.    Nature of Disclosure

¶ 21   Second, the nature of the information disclosed impacts the

  victim and D.E.2 That is, while Juror N disclosed that her daughter



  2 As the People note, the second People v. Christopher factor
  presupposes that a juror “withheld” information during voir dire.
  896 P.2d 876, 879 (Colo. 1995). Here, however, the record shows


                                      9
  had been date raped, she also disclosed that her son had faced a

  paternity accusation, but that it was false and he was “innocent.”

  Thus, this factor doesn’t clearly skew either way, and we can’t on

  this record second-guess the juvenile court and conclude that the

  information showed prejudice or bias against D.E. or that Juror N

  favored the victim.

                             3.   Intentional3

¶ 22   Third, when asked about her answers to the juror

  questionnaire, Juror N explained that because her daughter had

  not pressed charges, she didn’t think there was a “crime” to

  disclose, and she “just felt like [she] didn’t really have a chance” to

  say “anything sooner.” Juror N further explained that she did not

  disclose the information earlier because no one asked her any

  follow-up questions during voir dire and she “didn’t want to raise

  [her] hand and be embarrassed.” Based on Juror N’s explanation,




  that Juror N was never asked a question during voir dire that would
  have elicited the information she later disclosed. Thus, it cannot be
  said that she actually “withheld” this information during voir dire.
  3 Although Christopher, 896 P.2d at 879, uses the term “deliberate”

  and the juvenile court used the term “intentionally,” the parties
  appear to agree they are interchangeable for purposes of this
  analysis.

                                     10
  the juvenile court found that Juror N didn’t intentionally withhold

  the information and that she made her disclosure in an “abundance

  of caution just to be totally honest and straightforward[.]” Although

  we might have reached a different conclusion if tasked with the

  decision, it’s not ours to make. Given that the juvenile court’s

  factual findings have record support and are based on its credibility

  determination, we can’t conclude the court abused its discretion.

  See People v. Torres, 224 P.3d 268, 273 (Colo. App. 2009) (deferring

  to trial court’s finding that a juror’s failure to provide responsive

  information on a jury questionnaire was inadvertent after hearing

  juror’s explanation).

                          4.    Prejudicial Effect

¶ 23   Fourth, D.E. argues that Juror N’s late disclosure is

  presumptively prejudicial because it deprived him “of the ability to

  make a valid challenge for cause or peremptory challenge.” But as

  to the causal challenge, the court and counsel questioned Juror N

  about her ability to be fair and unbiased before the presentation of

  evidence. The court found credible Juror N’s representation that

  “she can be a fair and very unbiased juror in this case.” And the

  record does not show that Juror N “evinc[ed] enmity or bias toward


                                     11
  the defendant or the state.” § 16-10-103(1)(j), C.R.S. 2019; see

  People v. Young, 16 P.3d 821, 824 (Colo. 2001) (in reviewing denial

  of causal challenge, appellate courts defer to trial court’s

  assessment of a prospective juror’s credibility; and recognizing trial

  court’s ability to evaluate a juror’s demeanor and body language).

  Therefore, to the extent D.E. contends the late disclosure rendered

  Juror N actually biased, we have no basis to presume prejudice

  where the juvenile court found that Juror N could be fair and

  unbiased. See Young, 16 P.3d at 824. Compare People v. Novotny,

  2014 CO 18, ¶¶ 2, 27 (requiring a defendant to show prejudice to

  obtain reversal based on a trial court’s erroneous denial of causal

  challenge), with People v. Maestas, 2014 COA 139M, ¶¶ 19-20

  (reversing where court’s erroneous denial of causal challenge

  resulted in a biased juror serving on the jury, and “nothing in the

  record of voir dire suggest[ed] that she was willing to set aside her

  personal biases and decide the case based on the law and the

  evidence presented at trial”).

¶ 24   We turn next to D.E.’s contention that had Juror N not

  withheld the information about her daughter, he would have

  excused Juror N with a peremptory challenge (assuming he could


                                    12
  not strike her for cause). To be sure, the record shows that D.E.

  exercised all of his peremptory challenges, using two to excuse

  potential jurors who had disclosed some experiences related to

  sexual assault. But even if we assume Juror N intentionally

  withheld the information and that D.E. would have used a

  peremptory challenge to excuse her (as he asserts he would have),

  we still can’t presume prejudice. Before Novotny, we may have

  viewed the issue differently. But in that case, the Colorado

  Supreme Court departed from earlier decisions requiring automatic

  reversal where a defendant was “forced” to use a peremptory

  challenge to remedy a trial court’s mistaken denial of a challenge for

  cause. Novotny, ¶¶ 2, 14, 27. In doing so, it concluded that

  “allowing a defendant fewer peremptory challenges than authorized”

  doesn’t, in and of itself, require reversal. Id. at ¶ 27.

¶ 25   And in Vigil v. People, 2019 CO 105, the supreme court settled

  any doubt about whether a defendant could claim prejudice from

  the denial of the right to exercise a peremptory challenge. More

  specifically, the Vigil court held that “because neither the

  prosecution nor the defendant is granted any right in this

  jurisdiction, by constitution, statute, or rule, to shape the


                                     13
  composition of the jury through the use of peremptory challenges,

  the defendant could not have been harmed by the deprivation of

  any such right.” Id. at ¶ 25.

¶ 26    Thus, to the extent pre-Vigil cases (like Christopher, Dunoyair,

  Borrelli, or People v. Rael, 40 Colo. App. 374, 578 P.2d 1067 (1978))

  can be read to require reversal for the denial of the right to exercise

  a peremptory challenge alone, we conclude Novotny and Vigil

  implicitly overruled them. For that reason, even if D.E. would have

  exercised a peremptory challenge to strike Juror N, that, by itself,

  doesn’t establish reversible prejudice. See Vigil, ¶ 25; Novotny, ¶

  27.

                         5.    Practical Remedies

¶ 27    Fifth, as to the final Christopher factor, we agree with D.E. that

  it wasn’t “outside the scope” of the juvenile court’s authority to

  replace Juror N with the alternate after her disclosure. See § 16-

  10-106, C.R.S. 2019. Given that the disclosure happened before

  trial, replacing Juror N was a simple solution. But whether to do

  that was in the court’s discretion. People v. Abbott, 690 P.2d 1263,

  1268-69 (Colo. 1984). And because it found Juror N didn’t

  intentionally withhold the information and could be fair and


                                     14
  unbiased, the court acted within its discretion in declining to

  replace her with the alternate juror.

                         6.   Other Contentions

¶ 28   Even putting aside the Christopher factors, we are not

  persuaded by D.E.’s contention that the court reversibly erred

  because the incident concerning Juror N’s daughter occurred when

  her daughter was fourteen (like the victim here) and involved a

  seventeen-year-old (D.E.’s age). After defense counsel raised this

  similarity, Juror N responded that the incident with her daughter

  “happened a long time ago and [was] very much forgotten.” And the

  juvenile court — able to listen to and observe Juror N — found her

  “very credible.”

¶ 29   Nor does the fact that the incident regarding Juror N’s

  daughter also involved sexual assault necessarily preclude her from

  sitting as a juror. See People v. Conyac, 2014 COA 8M, ¶¶ 17-19

  (determining there was no abuse of discretion in sexual assault

  case where court denied challenge for cause against juror whose

  niece had been a victim of sexual assault where juror stated she

  would follow the court’s instructions and decide the case on the

  evidence); People v. Dashner, 77 P.3d 787, 789-90 (Colo. App. 2003)


                                    15
  (deciding there was no abuse of discretion where court denied

  challenge for cause against juror whose son had been a victim of

  the same crime charged at trial where juror stated he would follow

  the court’s instructions and decide the case on the evidence).

¶ 30   We are equally unpersuaded that what happened here is like

  the cases D.E. directs us to where new proceedings were required

  based on a juror’s post-trial disclosure. See, e.g., English v.

  Berghuis, 900 F.3d 804 (6th Cir. 2018); Allen v. Ramada Inn, Inc.,

  778 P.2d 291 (Colo. App. 1989); Borrelli, 624 P.2d 900; Rael, 40

  Colo. App. 374, 578 P.2d 1067. Unlike each of these cases, Juror N

  did not respond untruthfully or incompletely to a direct question

  during voir dire. Much to the contrary, she simply wasn’t asked

  anything by counsel that would have elicited a disclosure of her

  son’s or daughter’s experiences. Cf. English, 900 F.3d at 815-18

  (juror didn’t disclose during trial that she had been sexually abused

  as a child and later made three “partly contradictory” assertions

  regarding her nondisclosure); Allen, 778 P.2d at 292 (two jurors

  who were victims of rape did not respond when asked during voir

  dire whether they “had been the victim of a rape”); Borrelli, 624 P.2d

  at 902 (when asked directly about relationship with witness, the


                                    16
  juror failed to disclose the full scope of that relationship); Rael, 40

  Colo. App. at 375-76, 578 P.2d at 1068 (despite court’s inquiry

  whether anyone had been a defendant in a criminal case, the juror

  failed to disclose that he had pleaded guilty to a crime).

¶ 31   And even more unlike the cases D.E. relies on, Juror N came

  forward before the presentation of evidence and volunteered the

  disclosure, enabling the court and counsel to directly question her.

  Cf. English, 900 F.3d at 807 (after the defendant was convicted of

  sexual conduct, a juror revealed “at an evidentiary hearing” that she

  had been sexually abused); Allen, 778 P.2d at 292 (after verdict,

  counsel “learned” two jurors had not truthfully answered the

  question about being raped); Borrelli, 624 P.2d at 902 (a year after

  trial and after juror died, it was “discovered” the juror had not been

  truthful in voir dire); Rael, 40 Colo. App. at 375, 578 P.2d at 1068

  (after trial, defense counsel “was informed” a juror hadn’t disclosed

  criminal conduct).

¶ 32   Finally, although D.E. now argues that Juror N’s response to

  Question 6 on the juror questionnaire was untruthful, the record is

  undeveloped on this issue since no one asked her about that

  question after she made her voluntary disclosure. In any event,


                                     17
  given the court’s credibility findings, and that Question 3 is more

  directly on point, we can’t conclude that additional inquiry on

  Question 6 would have made a difference.

                                  7.     Conclusion

¶ 33   Given all this, and because the record supports the juvenile

  court’s findings that Juror N didn’t intentionally withhold the

  information and could be fair and unbiased, we conclude that the

  court’s decision to allow Juror N to serve on the jury was within its

  discretion.

                      III.    Evidentiary Challenges

¶ 34   D.E. next contends that the juvenile court abused its

  discretion by (1) allowing the prosecution to introduce evidence of

  the victim’s virginity and (2) barring his evidence that the victim

  was actively seeking to lose her virginity. We perceive no reversible

  error.

                             A.        Additional Facts

¶ 35   Before trial, D.E. filed two motions in limine to exclude

  evidence of the victim’s virginity. He also moved to introduce

  evidence that, one month before their sexual encounter, the victim

  allegedly communicated to two separate boys that she wanted to


                                           18
  have sex. He argued this evidence was admissible because it fell

  outside the rape shield statute and was relevant to his consent

  defense.

¶ 36    With respect to the victim’s virginity, the juvenile court agreed

  with the prosecution that this evidence was relevant to the issue of

  consent but found that it could be significantly prejudicial if “taken

  to an extreme.” Therefore, despite the prosecution’s request to

  introduce the virginity evidence through multiple witnesses, the

  court limited the prosecution to statements the victim made to a

  sexual assault nurse examiner. And the court also agreed that a

  question posed by a detective during D.E.’s recorded interview that

  referenced the victim’s virginity could be played at trial, but would

  be preceded by a limiting instruction to mitigate its prejudicial

  effect.

¶ 37    As to the victim’s communications with other boys, the court

  prohibited this evidence, finding that (1) D.E.’s offer of proof was

  insufficient to overcome the presumption of irrelevance under the

  rape shield statute; (2) the relevance of this evidence was

  “questionable”; and (3) the “prejudicial value” of the evidence under

  CRE 403 was “significant.”


                                     19
              B.    Standard of Review and Governing Law

¶ 38   We review a juvenile court’s evidentiary rulings, including

  those based on the rape shield statute, for an abuse of discretion.

  People v. Melillo, 25 P.3d 769, 772 (Colo. 2001). A court abuses its

  discretion if its ruling is manifestly arbitrary, unreasonable, or

  unfair, or based on an erroneous view of the law. People v. Sims,

  2019 COA 66, ¶ 44.

¶ 39   The rape shield statute creates a presumption that evidence

  relating to a victim’s prior “sexual conduct” is irrelevant. People v.

  Williamson, 249 P.3d 801, 802 (Colo. 2011); see § 18-3-407(1),

  C.R.S. 2019. The statute does not, however, “specifically prohibit

  the victim from testifying as to the lack of prior sexual activity.”

  People v. Johnson, 671 P.2d 1017, 1020 (Colo. App. 1983).

¶ 40   The presumption of irrelevance can be rebutted if the

  defendant makes an offer of proof showing the evidence is relevant

  to a material issue in the case. § 18-3-407(2); Melillo, 25 P.3d at

  774. But even then, the admissibility of such evidence remains

  subject to the usual evidentiary rules. Fletcher v. People, 179 P.3d

  969, 973 (Colo. 2007).




                                     20
¶ 41   Where a defendant preserves his evidentiary challenges, and

  evidence was erroneously admitted, we will reverse unless the error

  was harmless. People v. Stewart, 55 P.3d 107, 124 (Colo. 2002).

  An error is harmless when “there is not a reasonable probability

  that it contributed to the defendant’s conviction.” Mata-Medina v.

  People, 71 P.3d 973, 980 (Colo. 2003); see Crim. P. 52(a).

                   C.   Evidence of Victim’s Virginity

¶ 42   D.E. argues that it was reversible error for the court to allow

  evidence of the victim’s virginity because such evidence was

  irrelevant, inadmissible to disprove consent under the rape shield

  statute, and impermissible character evidence under CRE 404.

  Under the circumstances here, however, we need not determine if

  virginity evidence is ever admissible to disprove consent. This is so

  because, even assuming the juvenile court erred by admitting this

  evidence, any error was harmless.

¶ 43   The victim didn’t testify about her virginity, nor did any of her

  friends or family members. Instead, evidence of the victim’s

  virginity was referenced at trial in two ways. First, the prosecutor

  asked the nurse who performed the sexual assault examination a

  series of questions about her exam notes. The nurse confirmed the


                                    21
  notes stated “never” in response to a question on the form asking

  when the victim’s last sexual activity was. The prosecutor then

  moved to the next question and asked nothing else about the

  reported response or the subject.

¶ 44   Second, the jury heard an audio recording of a detective

  interviewing D.E. During the first part of the interview, D.E. denied

  he was with the victim or that he had sex with her. Later, he

  admitted they did have sex, but told the detective it was

  consensual. After D.E. changed directions, the detective asked:

  “You’re telling me that, a girl, a 14 year old girl who’s never had sex

  before, chooses to lose her virginity like this?” But, before the jury

  heard that question, the juvenile court gave the following

  instruction:

             I’ve interrupted this [audio] at this point to
             instruct you that the question you are about to
             hear from [the detective] is being presented for
             the purpose of placing D.E.’s response to the
             question in context only. You may not
             consider [the detective’s] question for any other
             purpose.

  And during closing argument, before the prosecutor replayed this

  portion of the interview, the court again gave this limiting

  instruction. D.E. doesn’t challenge the adequacy of the limiting


                                      22
  instruction and, in fact, proposed the language that the court

  ultimately used. Nor does D.E. challenge the admissibility of the

  interview or contend that the interview would have made sense to

  the jury in the absence of the detective’s question.

¶ 45     So, over the course of a six-day trial with twenty-three

  witnesses, the jurors (1) once heard a reference to the victim’s lack

  of sexual history as reported in the nurse’s exam notes; and (2)

  twice heard the detective’s question referencing the victim’s

  virginity, preceded each time by the instruction that they were to

  view it only as a question. Other than that, nothing else was said

  on the topic. And the prosecutor never expressly referenced it in

  either opening statement or closing argument.

¶ 46     Nor do we see anything in the record that suggests the

  prosecutor affirmatively used the evidence to either rebut D.E.’s

  consent defense or argue that D.E. “deflowered” the victim to “evoke

  [the] jurors’ sympathy and moral judgment.” Fletcher, 179 P.3d at

  975.

¶ 47     Indeed, the jury acquitted D.E. of the counts involving a

  deadly weapon, so it ultimately didn’t credit the victim’s account

  entirely. This shows the jurors were able to parse through the


                                     23
  evidence and weren’t improperly swayed by the few references to the

  victim’s sexual inexperience. See Martin v. People, 738 P.2d 789,

  795-96 (Colo. 1987) (although not conclusive, a split verdict

  indicates that prejudice did not affect the jury’s verdict).

¶ 48    Given these circumstances, the single reference to the exam

  notes, and the appropriate limiting instruction preceding the

  detective’s question, we conclude any error in the admission of the

  virginity evidence was harmless. See Fletcher, 179 P.3d at 976

  (finding two references to the victim’s lack of sexual experience

  during testimony and one indirect reference during closing were

  harmless); see also People v. Jimenez, 217 P.3d 841, 865 (Colo.

  App. 2008) (“Under the circumstances, these brief, isolated

  statements, even if erroneously admitted, did not affect defendant's

  substantial rights.”).

       D.   Evidence That Victim Was Seeking To Lose Her Virginity

¶ 49    D.E. also argues that, given the evidence of the victim’s

  virginity, the court erred by disallowing evidence that the victim was

  allegedly actively seeking to lose her virginity. D.E. specifically

  contends the evidence wasn’t prohibited by the rape shield statute

  and was relevant to his consent defense. We are unpersuaded.


                                     24
¶ 50   We initially reject D.E.’s argument that, because the rape

  shield statute only applies to “sexual conduct” and not statements,

  this evidence necessarily falls outside the statute.

¶ 51   The basic purpose of the rape shield statute is to provide

  sexual assault victims protection from humiliating public “fishing

  expeditions” into their sexual histories, unless the proponent of the

  evidence makes a preliminary showing that such evidence will be

  relevant to some issue in the pending case. People v. MacLeod, 176

  P.3d 75, 79 (Colo. 2008). The statute doesn’t preclude the

  admission of all sexual history evidence at trial; rather, it strikes a

  balance between the defendant’s rights and the victim’s privacy

  interest. Id.; see also People v. Harris, 43 P.3d 221, 226 (Colo.

  2002).

¶ 52   To that end, the term “sexual conduct” as used in the statute

  encompasses “a broad range of behaviors related, but not limited, to

  sexual contact and intercourse.” Williamson, 249 P.3d at 803-04

  (concluding that solicitation of prostitution constitutes “sexual

  conduct” under the statute).

¶ 53   We see no abuse of the juvenile court’s discretion in finding

  that D.E.’s offer of proof didn’t overcome the presumption that the


                                     25
  evidence of the victim allegedly trying to lose her virginity was

  prohibited by the rape shield statute. § 18-3-407(2); Melillo, 25

  P.3d at 774.

¶ 54   But even if we concluded the offer of proof was sufficient, we

  also agree with the juvenile court’s concern about the evidence’s

  relevance. Absent the impermissible inference drawn from those

  communications, whether she was interested in having sex with

  other boys sheds “no relevant light on the issue whether she did or

  did not consent to sexual contact with [D.E.]” People v. Braley, 879

  P.2d 410, 416 (Colo. App. 1993); see People in Interest of K.N., 977

  P.2d 868, 876 (Colo. 1999) (victim’s sexual history didn’t make it

  more probable that she consented to the sexual encounter with the

  defendant).

¶ 55   And we again agree with the juvenile court that the prejudicial

  effect of the evidence substantially outweighs any minimal

  relevance. See CRE 403; see Melillo, 25 P.3d at 777 (rape shield

  statute protects victims from “the unnecessary invasion of privacy

  and emotional abuse”).

¶ 56   Finally, we reject D.E.’s assertion that this presents a

  constitutional confrontation issue. “Not every evidentiary ruling


                                    26
  that affects a defendant’s ability to challenge the credibility of the

  evidence against him amounts to a constitutional error.” Conyac,

  ¶ 108. It is only if the juvenile court’s ruling effectively bars the

  defendant from meaningfully testing evidence central to

  establishing his guilt that the error is of constitutional magnitude.

  Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009). Excluding

  the victim’s communications with the other boys didn’t deprive D.E.

  of his only means to test significant prosecution evidence or

  impeach the victim’s credibility. Indeed, D.E. did so through

  extensive cross-examination and by presenting his own character

  and expert witnesses. Nor did it prevent D.E. from arguing his

  consent defense, which he advanced in opening statement and

  closing argument.

¶ 57   We therefore conclude that the juvenile court did not err by

  excluding evidence that the victim was allegedly seeking to lose her

  virginity.

                        IV.   Bolstering Testimony

¶ 58   D.E.’s final contention is that the juvenile court erred by

  allowing two expert witnesses to improperly bolster the victim’s

  credibility. We again perceive no reversible error.


                                     27
                         A.    Additional Facts

¶ 59   The prosecution called Dr. Sheri Vanino to testify as a blind

  expert in the field of sexual offense dynamics. Dr. Vanino testified

  generally on direct examination about certain “rape myths” and

  “misinformation about the topic of sexual assault.” When the

  prosecutor asked her about victims fabricating rape allegations for

  revenge or attention, she responded:

            Sure. So again, another huge myth. So the
            general public, even in the media you see it all
            the time where there’s insinuations that
            women cry rape all the time or teenagers cry
            rape or children say they’re — you know, lie
            and say they’re being sexually abused when
            they’re not. Well we know from the research
            that that’s not accurate at all. It’s very rare for
            people to —.

  Before she finished her statement, defense counsel objected and

  asked to approach the bench. After an inaudible bench conference,

  the examination resumed and the prosecutor moved to a different

  topic. The transcript doesn’t indicate whether the defense’s

  objection was overruled or sustained.

¶ 60   As already noted, the nurse who examined the victim also

  testified as an expert at trial. While reviewing the nurse’s exam

  notes, the prosecutor asked her what she meant when she wrote


                                    28
that the victim had “appropriate affect.” The nurse began to answer

and the following exchange occurred:

          [Nurse]: She was acting appropriately —

          [Defense Counsel]: Objection. Objection.

          [Nurse]: — the way that I have seen other
          young girls act in —

          [Prosecutor]: (Indiscernible.)

          [Nurse]: — a similar situation.

          [The Court]: All right. Just a minute. What’s
          your objection[?]

          [Defense Counsel]: I’m sorry, Judge. I’m going
          to object to her testifying about how other
          people react, especially based on these small
          sample sizes. We can approach if the Court
          needs it for the record.

          [The Court]: I’ll allow her to testify as to her
          observations of this patient.

          [Prosecutor]: Okay. Thank you.

The prosecutor then reiterated the court’s guidance to the nurse

and again asked her what she meant by “appropriate affect?”

Without any objection, the nurse answered: “Based on the

circumstances and what had just happened to her, it was

appropriate for the situation.”




                                  29
              B.     Standard of Review and Governing Law

¶ 61   We review a ruling on the admissibility of expert testimony for

  an abuse of discretion. Kutzly v. People, 2019 CO 55, ¶ 8. A court

  abuses its discretion when its decision is manifestly arbitrary,

  unreasonable, or unfair, or when it misconstrues the law. People v.

  Salas, 2017 COA 63, ¶ 30. And, if it does, we reverse only if the

  improper expert testimony substantially influenced the verdict or

  affected the fairness of the proceedings. Stewart, 55 P.3d at 124.

¶ 62   A witness may not testify that another witness told the truth

  on a specific occasion. Venalonzo v. People, 2017 CO 9, ¶ 32;

  People v. Bridges, 2014 COA 65, ¶ 11. This rule applies with equal

  force to direct and indirect implications of a child’s truthfulness.

  Venalonzo, ¶ 32.

¶ 63   Thus, a witness may not testify that a child reporting sexual

  assault was “sincere,” People v. Eppens, 979 P.2d 14, 17 (Colo.

  1999), “very believable,” People v. Gaffney, 769 P.2d 1081, 1088

  (Colo. 1989), “very credible,” People v. Cook, 197 P.3d 269, 275-76

  (Colo. App. 2008), or not “coached or guided,” Bridges, ¶¶ 13, 16. A

  witness likewise may not testify that she “personally believed” the

  victim, People v. Oliver, 745 P.2d 222, 225 (Colo. 1987), or that


                                    30
  children tend not to fabricate stories of sexual abuse, People v.

  Snook, 745 P.2d 647, 649 (Colo. 1987). See also People v. Marx,

  2019 COA 138, ¶ 19 (finding testimony about percentage of

  teenagers who fabricate sexual assault allegations was improper

  bolstering). That is, testimony that the victim’s allegations are

  truthful is improper.

                             C.   Discussion

¶ 64   We need not decide whether the court erred by admitting the

  above testimony because, even assuming it did, any error was

  harmless, for three reasons.

¶ 65   First, it isn’t clear from the record whether defense counsel’s

  objections to the testimony were overruled. To the contrary, the

  transcripts suggest that the objections were effectively sustained

  given that, after each objection, the prosecutor either changed the

  topic or rephrased her question in line with the court’s instruction.

  See People v. Hogan, 114 P.3d 42, 55-56 (Colo. App. 2004) (deciding

  that there was no reversible error where court sustained objections

  to four different lines of questioning and instructed the jury to

  disregard one line of questioning). Indeed, as the People note, D.E.

  didn’t raise any issue regarding the manner in which the court


                                    31
  handled either objection. People v. McKnight, 39 Colo. App. 280,

  284, 567 P.2d 811, 814 (1977) (determining reversible error did not

  occur where defense counsel, after a sustained objection, requested

  neither a mistrial nor a cautionary instruction).

¶ 66   Second, leaving aside whether the objections were sustained,

  Dr. Vanino told the jury that her testimony didn’t relate to “the

  issue of consent.” The nurse also testified that she couldn’t say

  whether the injuries she observed were more likely consistent with

  consensual or nonconsensual sex. So both experts disclaimed an

  opinion on the only material issue — whether the sex was or wasn’t

  consensual.

¶ 67   Third, the jury heard from the victim and had a chance to

  directly assess her credibility. See Tevlin v. People, 715 P.2d 338,

  342 (Colo. 1986). In doing so, it did not entirely credit her version

  of events. And the jury likewise heard D.E.’s interview in which he

  eventually claimed the sex was consensual. So the jury was able to

  weigh D.E.’s account against the victim’s.

¶ 68   Under these circumstances, even if we assume the court didn’t

  sustain defendant’s objections and that the experts’ testimony

  constituted improper vouching, we can’t conclude the brief


                                    32
  references substantially influenced the verdict or affected the

  fairness of the proceedings.

                            V.    Conclusion

¶ 69   We affirm the adjudication.

       JUDGE RICHMAN and JUDGE YUN concur.




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