October 6, 2015

Colorado Court of Appeals: Victim’s Entire Interview Admissible to Give Jury Complete View of Credibility

The Colorado Court of Appeals issued its opinion in People v. Miranda on Thursday, August 14, 2014.

Sexual Assault on a Child—Evidence—Recording—Prior Consistent Statements—Confrontation Clause—Res Gestae Evidence—Hearsay.

A jury convicted Miranda of sex offenses involving his girlfriend’s 11-year-old daughter, E.S., and her friend, V.M. On appeal, Miranda contended that the trial court erred either in admitting a DVD recording of E.S.’s entire forensic interview or in allowing the prosecution to introduce the recording after E.S. had testified and been released, claiming it violated his confrontation rights. The entire recording was admissible as a prior consistent statement because Miranda broadly attacked the credibility of E.S. Further, the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced, which happened in this case. Therefore, Miranda’s confrontation rights were not violated, and the trial court did not commit plain err in admitting the recording.

Miranda also argued that the trial court abused its discretion in admitting evidence that he had groomed E.S., because the evidence was not admissible as res gestae. The record reveals that both the charged offenses and the grooming acts occurred over approximately the same two-year period, and it was helpful to explain the context of the assaults. Therefore, the trial court acted within its “substantial discretion” in admitting the acts as res gestae evidence.

Miranda contended that the trial court erred in admitting a list made by E.S.’s step-mother of the abuse told to her by E.S. However, both the step-mother and E.S. were available to testify, and although roughly two years lapsed between the first assault and the creation of the list, this time span was not so long that E.S. could no longer accurately recall the events that she recited. Thus, the trial court did not commit plain error in admitting the list under CRE 803(5).

Miranda contended that the trial court erred in denying his motion for judgment of acquittal on the V.M. attempt counts because “there was no evidence presented of any overt request and/or expressed dare for a sex act that Mr. Miranda made to V.M.” However, the there was sufficient evidence showing that Miranda had taken all steps preparatory to assaulting V.M. in the same way he assaulted E.S., and had engaged her in a game of truth or dare for the purposes of sexual exploitation.

Finally, Miranda argued that he was entitled to a new trial because his statements to the detective regarding the game incident were taken out of context in a redacted DVD that was given to the jury before deliberation. However, Miranda denied having played the game with the girls in both the redacted and unredacted versions, and he denied having done so at trial. Therefore, he was not entitled to a new trial. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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