v. Collins

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
February 18, 2021

2021COA18

No. 16CA2170, People v. Collins — Crimes — Sexual Assault on
a Child; Criminal Law — Trial Proceedings — Use of a Court
Facility Dog; Constitutional Law — Sixth Amendment —
Confrontation Clause

In this criminal appeal from a conviction for sexual assault on

a child, a division of the court of appeals addresses an issue of first

impression: whether the trial court violated defendant’s

confrontation rights when it allowed a child victim to have a court

facility dog at her feet while she testified during trial. On appeal,

defendant argues that the presence of the court facility dog violated

his confrontation rights because the dog’s presence mitigated this

child victim’s discomfort about naming defendant as her abuser in

court, lessening the reliability of her testimony.

Because the division concludes that defendant’s right to

confrontation doesn’t carry with it right to impose discomfort on an
accusing witness, and because the trial court’s findings that all

confrontation requirements were met have record support, the

division rejects defendant’s confrontation claim. Because the

division also concludes that the other evidentiary issues that

defendant raises on appeal don’t warrant reversal, the division

affirms the convictions. But, because of a clerical error in the

mittimus, the division remands the case for the limited purpose of

correcting the mittimus.
COLORADO COURT OF APPEALS 2021COA18

Court of Appeals No. 16CA2170
Mesa District Court No. 15CR524
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cory Rex Collins,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH INSTRUCTIONS

Division V
Opinion by JUDGE WELLING
J. Jones and Gomez, JJ., concur

Announced February 18, 2021

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

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 We must determine whether the trial court violated defendant

Cory Collins’s confrontation rights when it allowed the child victim

to have a court facility dog at her feet while she testified during

trial.

¶2 At the time of the prosecution’s motion requesting a court

facility dog, there was no statutory guidance. But in 2019, the

General Assembly enacted a statute authorizing the use of court

facility dogs. We know of no Colorado case, however, that has

analyzed the defendant’s argument here — that the presence of the

court facility dog violated his confrontation rights.

¶3 Because we conclude that Collins’s right to confrontation

doesn’t carry with it right to impose discomfort on an accusing

witness, and because the trial court’s findings that all confrontation

requirements were met have record support, we reject Collins’s

confrontation claim. Because we also conclude that the other

evidentiary issues that Collins raises on appeal don’t warrant

reversal, we affirm the convictions. But, because of a clerical error

in the mittimus, we remand the case for the limited purpose of

correcting the mittimus.

1
I. Background

¶4 Between January 2013 and November 2014, Collins sexually

abused T.M.1 At the time of the assaults, Collins was in a romantic

relationship with T.M.’s mother and lived with her and T.M. T.M.

was between the ages of three and five years old at the time of the

abuse. At the time, T.M.’s mother had unstable housing and was

using drugs.

¶5 In September 2013, the Department of Human Services (the

Department) contacted T.M.’s biological father, expressing concern

about T.M.’s living situation with her mother. T.M.’s father sought

an emergency protective order to take temporary custody of her.

Shortly thereafter, she began living with her father, his wife (T.M.’s

step-mother), and their three children. Eventually, T.M.’s mother’s

parental rights were terminated and T.M. remained in her father’s

custody.

¶6 Soon after T.M. moved into her father’s house, her father and

step-mother began to suspect that she’d been sexually abused

1 During the pre-trial investigation, T.M.’s name changed from T.M.
to E.W. She is referenced by both names in the record. For the
sake of consistency and simplicity, we refer to her as T.M. in this
opinion.
2
when she lived with her mother. T.M. had problems urinating and

didn’t understand the concept of privacy between family members.

T.M. told her father that she’d “played the S game”2 (or “sex game”)

with someone named “Andy.”

¶7 Her father reported T.M.’s disclosure of playing the “S game” to

police. A forensic interviewer questioned T.M. about this in October

2013. T.M. didn’t repeat the disclosure regarding the “S game” to

the interviewer. Because T.M. didn’t disclose any abuse, police

didn’t conduct an additional investigation at that time.

¶8 In the spring of 2014, T.M. took off her clothes and got into

bed with her step-brother, who was also a child. Her father and

step-mother questioned T.M. about this behavior and she referred

to it as the “S game.” T.M. went on to say that she had “played the

S game” with Collins. When questioned further by her father and

step-mother, T.M. disclosed that Collins had touched her

inappropriately. T.M. also told them that she didn’t like Collins,

describing him as “gross” and “not safe.” Her father and step-

mother reported these disclosures to the Department. But after an

2T.M.’s stepmother testified that T.M. explained to her that the “S
game” is where “[y]ou get naked and you get under the covers.”
3
initial investigation, the Department concluded that the allegations

against Collins were unfounded.

¶9 Soon after, T.M. started seeing a counselor. T.M. told her

counselor that Collins had “touched her privates.” Her counselor,

in turn, reported this to the Department.

¶ 10 In November 2014, a police detective interviewed T.M. T.M.

told the detective that Collins had touched her inappropriately and

was able to draw a picture of his genitals. When asked if she had

been touched by anyone other than Collins, she said no. Based on

this information, police arrested Collins.

¶ 11 Collins was charged with two counts of sexual assault on a

child under age fifteen by one in a position of trust and as a pattern

of abuse; one count of sexual assault on a child as a pattern of

abuse; and one count of sexual assault on a child as a pattern of

abuse.

¶ 12 There were two jury trials. The first ended in a mistrial. T.M.

testified at both trials. Collins didn’t testify. His theory of defense

was that although he never touched T.M. inappropriately, T.M. had

been sexually abused by “Andy,” a friend of T.M.’s mother who,

Collins argued, was a known sex offender. Collins contended that

4
T.M. was coerced by her mother to accuse him — and not Andy —

of touching her inappropriately because her mother was angry with

him. Collins also argued that T.M.’s parents’ and therapist’s

repeated questioning about Collins subtly influenced T.M. to name

him, instead of Andy, as the person who had touched her

inappropriately.

¶ 13 The jury found Collins guilty of sexual assault on a child and

sexual assault on a child by one in a position of trust (with an

additional finding that T.M. was a protected person because of her

age).3 Collins was sentenced to an indeterminate concurrent

sentence of four years to life in the custody of the Department of

Corrections.

II. Analysis

¶ 14 On appeal, Collins raises four issues. First, Collins contends

that the trial court abused its discretion by allowing T.M. to testify,

arguing that she was incompetent due to her age. Second, Collins

contends that the trial court deprived him of his federal and state

constitutional right to confrontation by allowing a court facility dog

3Before closing argument during the second trial, the prosecution
moved to dismiss the pattern charges.
5
(also commonly referred to as a comfort or support dog) to sit at

T.M.’s feet while she testified. Third, Collins contends that the trial

court erred by permitting the prosecutor to ask its expert witness

certain questions that called for the witness to improperly bolster

T.M.’s testimony. And fourth, Collins contends that the mittimus

must be amended to reflect that the pattern of abuse sentence

enhancer was dismissed.

¶ 15 We address each issue below and conclude that (1) the court

didn’t abuse its discretion by allowing T.M. to testify; (2) the court

didn’t violate Collins’s confrontation rights by allowing a court

facility dog to sit at T.M.’s feet while she testified; (3) although the

trial court erred by permitting a prosecution expert to answer

certain questions, the error was harmless; and (4) the case must be

remanded to correct the mittimus.

A. T.M.’s Competency to Testify

¶ 16 First, Collins argues that the trial court abused its discretion

in two regards when it found T.M. competent to testify. First, he

contends that the trial court erred when it considered previously

recorded forensic interviews of T.M. while assessing T.M.’s

competence to testify. And second, Collins contends that the trial

6
court’s factual findings regarding T.M.’s competence aren’t

supported by the record and its legal conclusion isn’t based on the

correct legal standard. We aren’t persuaded.

1. Legal Principles

¶ 17 Subject to certain exceptions, all persons are competent to be

witnesses. See § 13-90-101, C.R.S. 2020; CRE 601. But children

under ten years of age who appear incapable of “receiving just

impressions” or of relating them truthfully aren’t legally competent

and may not be called as witnesses. § 13-90-106(1)(a), (b)(I), C.R.S.

2020. A child under ten years of age may testify, however, if “the

child is able to describe or relate in language appropriate for a child

of that age the events or facts respecting which the child is

examined.” § 13-90-106(1)(b)(II).

¶ 18 A trial court “has broad discretion in determining how a

competency hearing will be held.” People v. Dist. Ct., 776 P.2d

1083, 1087 n.4 (Colo. 1989) (citation omitted) (indicating that a

competency hearing may be held in the judge’s chambers if it eases

the child’s anxiety); see also People v. Trujillo, 923 P.2d 277, 281

(Colo. App. 1996) (“the manner and scope of examination should be

left to the sound discretion of the trial court”).

7
¶ 19 We review a preserved statutory claim regarding competence of

a child witness for an abuse of discretion. People v. Wittrein, 221

P.3d 1076, 1079 (Colo. 2009); People v. Dist. Ct., 791 P.2d 682, 684

(Colo. 1990). A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or is based on a

misapplication of the law. People v. Lindsey, 2018 COA 96M, ¶ 5.

2. Additional Factual Background

¶ 20 Two months before the first trial, the court conducted a

competency hearing for T.M., then six years old. During the

hearing, T.M. answered questions posed by the court, the

prosecutor, and defense counsel. She accurately stated her age and

who she lives with. She told the court the names of two of her

teachers and her best friend. She also corrected defense counsel

when he misstated the term she uses to refer to her grandfather.

She explained the difference between the truth and a lie and

described telling the truth as “right.” She said that, in her house,

“[y]ou get in trouble” for lying.

¶ 21 During the hearing, the trial court admitted recordings of two

forensic interviews of T.M.; one conducted in 2013, the other in

2014. The prosecution introduced T.M.’s interview from 2014, and

8
Collins didn’t object. Collins then introduced, over the

prosecution’s objection, a copy of T.M.’s interview from 2013.

¶ 22 After watching the 2013 interview, the trial court found that

T.M. was able to identify her favorite colors, knew the difference

between a “real” bear and a toy bear, and was able to identify body

parts.

¶ 23 After watching the 2014 interview, the trial court found that

T.M. “was able to spell her name, able to identify other people in her

house, and whether the other kids in the home were older or

younger.” The court also found that “when asked to explain why

she was talking to [police], T.M. stated that she was there because

[Collins] touched T.M.’s privates and T.M. touched [Collins’s]

privates.” Finally, the court found that during the 2014 interview,

T.M. was able to relate that Collins had hair around his genitals.

She also demonstrated the way Collins’s hand moved when he

touched her and how her hand moved when she touched him.

¶ 24 In January 2016, the trial court issued a written order,

concluding that T.M. was competent to testify. In so ruling, the

court found that T.M. was “sufficiently able to relate events or facts

in language appropriate for a child her age.” The court based its

9
ruling on its observations during the competency hearing, as well as

its review of the recorded forensic interviews from 2013 and 2014.

3. Analysis

¶ 25 First, we consider whether the trial court erred by reviewing

and considering the two recorded forensic interviews when making

its competency determination.4

¶ 26 Collins didn’t object to the court’s consideration of the

recorded interviews, so we review for plain error.5 Hagos v. People,

2012 CO 63, ¶ 14. Plain error is error that is obvious and that “ so

undermined the fundamental fairness of the trial itself . . . as to

cast serious doubt on the reliability of the judgment of conviction.”

4 Collins contends that the trial court violated his statutory and
constitutional confrontation rights but he doesn’t explain any
further. This constitutional argument isn’t adequately developed so
we won’t address it. See C.A.R. 28(a)(7)(B); see also People v.
Simpson, 93 P.3d 551, 555 (Colo. App. 2003) (declining to address a
“bald legal proposition” that isn’t developed with supporting
argument).
5 As noted above, after the 2014 interview was admitted without

objection at the prosecutor’s request, the 2013 interview was
admitted at Collins’s request. The Attorney General contends that
by requesting that the court admit the 2013 interview, Collins
invited or waived the error that he advances on appeal. Collins
disagrees. Because we conclude that the trial court didn’t err
(much less plainly err) by admitting and considering the forensic
interviews, we don’t need to resolve the issue of whether the alleged
error was invited or waived.
10
Id. Collins contends that, while the trial court is granted broad

discretion to conduct a competency hearing, its discretion applies

only to the hearing itself, not to recordings taken earlier. He also

contends, relying on People v. Dist. Ct., 776 P.2d at 1087, that the

trial court shouldn’t have considered the recordings because

competence at the time of the recordings isn’t relevant to

competency at the time of trial. We aren’t persuaded.

¶ 27 While it’s certainly true that competence is evaluated at the

time of trial, when a challenge to competence is based on a

witness’s youth or immaturity, a demonstration of competence

earlier is certainly relevant. Thus, the recordings of interviews of

T.M. from 2013 and 2014 are evidence that go directly to the crux

of the issue — whether T.M. could describe events about which she

was being questioned in age-appropriate language. See People v.

Vialpando, 804 P.2d 219, 224 (Colo. App. 1990). Accordingly, the

trial court didn’t err, much less plainly err, by considering T.M.’s

two recorded forensic interviews — in addition to the evidence

presented at the competency hearing itself — in assessing her

competence to testify at trial.

11
¶ 28 Next, we turn to Collins’s contention that trial court erred in

its application of the competency statute. For the first time on

appeal, Collins contends that the trial court erred because (1) T.M.

didn’t identify Collins or describe the inappropriate touching during

the competency hearing and (2) the record doesn’t support a finding

of competence. We reject both contentions.

¶ 29 First, a child witness isn’t required to describe the assailant or

the underlying abuse for the trial court to make a determination

that the child-witness is competent to testify. See Trujillo, 923 P.2d

at 281; cf. Kentucky v. Stincer, 482 U.S. 730, 741 (1987)

(“[Q]uestions at a competency hearing usually are limited to matters

that are unrelated to the basic issues of the trial.” (citations

omitted)). T.M. didn’t describe the details of the sexual abuse nor

did she name Collins as her abuser during the competency hearing.

But this was for good reason — T.M. was never asked about the

details of the sexual abuse because these types of questions aren’t

required during a competency hearing. See Stincer, 482 U.S. at

741. And while it’s not required for a finding of competence, we

note that during the recorded interviews, T.M. named Collins as the

person who had touched her inappropriately.

12
¶ 30 Second, the record supports the trial court’s finding that T.M.

was competent to testify. T.M.’s testimony at the hearing

established that she was able to correctly relate her name, her age,

the name of her best friend, and the names of her family members.

See Vialpando, 804 P.2d at 223 (the trial court didn’t abuse its

discretion by finding a child competent to testify where the child

correctly related her grade in school, the defendant’s first name,

and the date of the sexual assault, and could distinguish between

truth and a lie). T.M. was also able to distinguish the truth from a

lie and promised to tell the truth. See id.; see also Stackhouse v.

People, 2015 CO 48 ¶¶ 17-18; Trujillo, 921 P.2d at 281 (child was

competent after she was able adequately to relate events or facts,

knew the difference between the truth and a lie, knew the

importance of telling the truth, and was able to relate sequences of

events).

¶ 31 Thus, the record demonstrates that T.M. could properly

answer questions about various facets of her life and that she did

so in age-appropriate language. Accordingly, the trial court didn’t

abuse its discretion by finding her competent to testify at trial.

B. Court Facility Dog

13
¶ 32 Next, Collins contends that the trial court violated his

confrontation rights when it allowed a court facility dog to sit at

T.M.’s feet while she testified. Specifically, Collins contends that

the dog’s presence mitigated T.M.’s discomfort about naming Collins

as her abuser in court, lessening the reliability of her testimony and

violating his state and federal confrontation rights. Collins also

contends that the prosecution failed to demonstrate a compelling

need for the presence of a court facility dog that outweighed his

confrontation rights. We aren’t persuaded.

1. Additional Factual Background

¶ 33 Before the second trial, the prosecution requested that a court

facility dog be allowed to sit at T.M.’s feet while she testified

because she was anxious about testifying.6 Collins filed a written

6 At the time of the prosecution’s motion, no statutory provision
expressly either allowed or prohibited the use of a court facility dog.
Later, however, the Colorado General Assembly enacted a statute
authorizing the use of court facility dogs. See § 16-10-404, C.R.S.
2020; Ch. 138, sec. 1, § 16-10-404, 2019 Colo. Sess. Laws 1739-
40. That statute provides that a trial court “may, upon motion of a
party or upon its own motion, order that a witness’s testimony be
offered while a court facility dog is in the courtroom during the
testimony of the witness” in a criminal proceeding if the court
makes certain findings by a preponderance of the evidence. § 16-
10-404(2)(a).
14
objection, arguing, in part, that the use of a court facility dog

violated his right to confrontation because “the process of

confrontation necessarily requires a certain level of subtle emotional

and psychological tension between the accused and the witness.”

¶ 34 The trial court conducted a hearing at the prosecution’s

request. The trial court found that the presence of a court facility

dog didn’t violate Collins’s confrontation rights because

“confrontation is with the witness” and the court facility dog didn’t

constitute “evidence in the case.” The trial court additionally found

that the dog’s presence would be useful to the efficiency of the trial,

as the court observed during the first trial that T.M. “somewhat

freezes and [had] a hard time testifying.”7 The trial court also

considered the Victims’ Rights Act, noting that “it is the intent of

the Legislature to assure that all victims of and witnesses to crimes

are honored and protected by law enforcement agencies,

prosecutors, and judges.” The trial court allowed T.M. to have a

7The prosecution’s motion noted that the court facility dog was not
present during T.M.’s previous testimony because no dogs were
available.
15
court facility dog — a golden retriever named Tillie — sit at her feet

while she testified. The trial court found,

With everything that I have I am going to allow
Tillie to be present. I do find that it is
appropriate. I do find that there has been
showing that it would assist the child, in this
case T.M., aka E.W. for testimony. I have
viewed Tillie in the courtroom in other cases.
She has not been a distraction. In one recent
case she was present with a child victim and
quite frankly I think she was sleeping. I didn’t
see nor hear her.

(Emphasis added.)

¶ 35 The court concluded,

In this case I’m going to have Tillie come in
early. She will be, as much as possible, outside
of the view of the jury. There will be an
instruction that will be given, that the jury is
not to make any inferences for or against
either side due to Tillie’s presence. I do find
that she is professionally trained based on a
curriculum — at least the documentation that
shows what her certification is for. She will be
leashed.

(Emphasis added.)

16
¶ 36 In order to avoid any unfair prejudice towards Collins, the trial

court arranged for Tillie to sit at T.M.’s feet, outside of the jurors’

view, while she testified.8

2. Analysis

a. Confrontation

¶ 37 The United States Constitution provides, in relevant part, that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.” U.S. Const.

amend. VI. Similarly, the Colorado Constitution provides that “[i]n

criminal prosecutions the accused shall have the right . . . to meet

the witnesses against him face to face.” Colo. Const. art. II, § 16.

The Colorado Constitution secures identical rights as the federal

right to confrontation. People v. Phillips, 2012 COA 176, ¶ 56. The

purpose of the confrontation clause is “to prevent conviction by [e]x

8 The court proposed a jury instruction related to Tillie’s presence,
but it was not given to the jury. The court suggested the
instruction was unnecessary because Tillie was out of the jurors’
view. Both defense counsel and the prosecutor agreed that it
wasn’t needed. The prosecutor indicated that the instruction may
“draw attention to something [the jury is] likely unaware of at this
time.” Collins doesn’t challenge on appeal the court’s decision not
to give the instruction, nor does he challenge the procedure that
was employed that led to the jury being unaware of the dog’s
presence.
17
parte affidavits, to sift the conscience of the witness, and to test his

recollection to see if his story is worthy of belief.” Id. at ¶ 79

(quoting People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300

(1976)).

¶ 38 Collins preserved this issue by filing a written objection,

arguing that the prosecution hadn’t established the need for a court

facility dog and that the dog’s presence would violate his

confrontation rights. We review a preserved Confrontation Clause

issue de novo. People v. McFee, 2016 COA 97, ¶ 28.

¶ 39 The right of confrontation generally requires that a witness

testify under oath, in open court, and face-to-face with the

defendant. Maryland v. Craig, 497 U.S. 836, 845-46 (1990). It also

requires that a witness be subject to cross-examination by defense

counsel and that the jury have the ability to observe the witness’s

demeanor while testifying. Id.

¶ 40 Every requirement of confrontation was met here. T.M.

testified in open court and face-to-face with Collins, she took an

oath prior to her testimony, she was subject to cross-examination

by defense counsel, and the jury was able to observe her demeanor

18
while testifying. Collins doesn’t dispute this; rather, he focuses on

T.M.’s emotional state during her testimony.

¶ 41 Citing Coy v. Iowa, 487 U.S. 1012, 1020 (1988), Collins argues

that Tillie’s presence lessened T.M.’s anxiety about testifying and

violated his right to confrontation because, he contends, she didn’t

feel the “degree of discomfort” a testifying accuser should be subject

to. See id. (“[C]onstitutional protections have costs.”). This

argument fails.

¶ 42 We aren’t persuaded that Coy informs our analysis. In Coy,

the Supreme Court analyzed the trial court’s decision to allow two

child sexual assault victims to testify behind a large screen that

enabled the defendant “dimly to perceive the witnesses, but the

witnesses to see him not at all.” Id. at 1014-15. The Court held

that the defendant’s right to confrontation was violated because the

screen enabled the witnesses to avoid viewing the defendant as they

testified. Id. at 1012. In so ruling, the Court reasoned that the

defendant’s presence “may, unfortunately, upset the truthful rape

victim or abused child; but by the same token it may confound and

undo the false accuser, or reveal the child coached by a malevolent

adult.” Id. at 1019.

19
¶ 43 Collins’s reliance on Coy is misplaced. Coy doesn’t stand for

the proposition that crime victims must endure stress while

testifying to satisfy the right to confrontation. While satisfying a

defendant’s right to confront his or her accuser may impose an

unavoidable level of discomfort for the accusing witness, the right

doesn’t carry with it a prohibition on mitigating discomfort nor a

right to impose discomfort. Put simply, easing a testifying witness’s

discomfort doesn’t violate a defendant’s confrontation rights.

¶ 44 Additionally, T.M. could still physically see Collins while she

testified. This is unlike the child victims in Coy who were entirely

shielded from seeing the defendant’s face. Here, the trial court

exercised its special care to assist a young victim during her

testimony, while still maintaining Collins’s right to confront T.M.

face-to-face.

¶ 45 And, while no Colorado appellate court has addressed whether

the presence of a court facility dog violates a defendant’s

confrontation rights, other states’ courts have rejected this notion.

See, e.g., State v. Millis, 391 P.3d 1225, 1233 (Ariz. Ct. App. 2017)

(“In keeping with the trial court’s ‘broad discretion’ in managing

trial conduct, this court will not disturb a trial court’s ruling

20
regarding the use of a facility dog absent an abuse of discretion.”

(citation omitted)); People v. Spence, 151 Cal. Rptr. 3d 374, 405

(Cal. Ct. App. 2012) (trial court “appropriately exercised its

discretion” by providing a therapy dog in this exercise of ‘special

care to protect [the witness] from undue harassment or

embarrassment’”); People v. Tohom, 109 A.D.3d 253, 271-73 (N.Y.

App. Div. 2013) (a dog’s presence didn’t violate the defendant’s right

to confront witnesses, citing the trial court’s discretion to “fashion[ ]

an appropriate measure to address a testifying child witness’s

emotional or psychological stress, based upon the particular needs

of that child”); State v. Dye, 309 P.3d 1192, 1194 (Wash. Ct. App.

2013) (rejecting confrontation challenge, concluding that the “trial

court acted within its broad discretion when it determined that . . .

the facility dog provided by the prosecutor’s office to the victim . . .

was needed in light of [the victim]’s severe developmental

disabilities in order for [the victim] to testify adequately”). We agree

with these decisions and conclude that permitting a witness to

testify in the presence of a comfort animal doesn’t violate a

defendant’s confrontation rights.

b. Necessity

21
¶ 46 Next, Collins argues that the trial court erred by allowing Tillie

to accompany T.M. without first requiring a showing of necessity by

the prosecution. Whether the trial court applied the correct legal

standard is a question of law that we review de novo. People v.

Triplett, 2016 COA 87, ¶ 28.

¶ 47 At the time of trial, Colorado didn’t have a statute governing a

party’s request for a court facility dog. And there isn’t any Colorado

case law addressing whether a showing of necessity is required

before a court authorizes the use of a court facility animal over a

party’s objection. Courts in other jurisdictions, however, have

addressed this issue.

¶ 48 There is a split of outside authority on whether the

prosecution must prove that a witness needs a specific support or

comfort item before the court can allow its use or presence over the

defense’s objection. Compare State v. Dickson, 337 S.W.3d 733, 743

(Mo. Ct. App. 2011) (no showing of necessity was required where

the witness was testifying about traumatic events and no reference

was made to the comfort items in the jury’s presence), and Sperling

v. State, 924 S.W.2d 722, 726 (Tex. Ct. App. 1996) (no showing of

necessity was required, as the appellate court couldn’t conclude

22
that a comfort item “constituted demonstrative evidence which

engendered sympathy in the minds and hearts of the jury, validated

the child-victim’s unimpeached credibility, or deprived appellant of

his constitutional right of confrontation”), with Gomez v. State, 25

A.3d 786, 798-99 (Del. 2011) (adopting “substantial need” standard,

requiring the prosecution to show that the item is necessary to

facilitate the witness’s testimony), and State v. Palabay, 844 P.2d 1,

2 (Haw. Ct. App. 1992) (adopting “compelling necessity” standard,

requiring the prosecution to show that the item is necessary to

facilitate the witness’s testimony).

¶ 49 The majority of courts in other jurisdictions, however, have

concluded that a finding of necessity isn’t required. See, e.g.,

People v. Chenault, 175 Cal. Rptr. 3d 1, 11 (Cal. Ct. App. 2014);

State v. Devon D., 138 A.3d 849, 864 (Conn. 2016); Dickson, 337

S.W.3d at 743; Tohom, 109 A.D.3d at 266; Sperling, 924 S.W.2d at

726; Dye, 309 P.3d at 1199; contra Gomez, 25 A.3d at 798-99;

Palabay, 844 P.2d at 2; State v. Cliff, 782 P.2d 44, 45 (Idaho Ct.

App. 1989); State v. Hakimi, 98 P.3d 809, 811 (Wash. Ct. App.

2004) (concluding that the court didn’t abuse its discretion where

23
the child victim was allowed to hold a doll while testifying, due to a

“peculiar need find some security in an otherwise insecure setting”).

¶ 50 We are persuaded by those cases that have rejected requiring

the proponent of the use or presence of a comfort item or animal to

show necessity. Requiring a lesser showing is consistent with the

Victims’ Rights Act, as well as the considerable latitude that

appellate courts afford trial judges in controlling courtroom

decorum. See, e.g., People v. Marquantte, 923 P.2d 180, 183 (Colo.

App. 1995) (“A court has broad discretion to determine what actions

are necessary to regulate the courtroom.”); People v. Angel, 790 P.2d

844, 846 (Colo. App. 1989) (“[A] trial court does have broad

discretion to regulate its courtroom and has inherent powers to

preserve order and to prevent interference with or obstruction of

justice.”). Cf. People v. Whitman, 205 P.3d 371, 379 (Colo. App.

2007) (“Providing a young, distracted, and emotional witness with

an environment designed to promote the witness’s complete

testimony satisfies either the overriding or substantial interest

standards.”).

¶ 51 Here, the trial court found that (1) Tillie’s presence would

assist the witness; (2) based on prior interactions, Tillie wouldn’t

24
interfere with the proceedings; and (3) Tillie would remain out of

view of the jury and wouldn’t have a prejudicial impact on the jury.

These findings are supported by the record, and we conclude that,

in the absence of a statute imposing a requirement of necessity, no

greater showing was required.

¶ 52 Accordingly, the trial court didn’t abuse its discretion by

allowing T.M. to testify with Tillie at her feet. See Tohom, 109

A.D.3d at 267 (a “judge conducting a public trial is empowered to

control the proceedings in whatever manner may be consistent with

the demands of decorum and due process”).

C. Expert Testimony

¶ 53 Collins next contends that the trial court erred by admitting

portions of an expert’s testimony that, he argues, improperly

bolstered T.M.’s testimony.

1. Additional Factual Background

¶ 54 During the trial, the prosecution presented testimony by

Cheryl Young, a therapist. Without objection, the court accepted

Young as an expert in

 child sexual assault and abuse;

 reactions of child victims during a sexual assault;
25
 patterns of disclosure in outcry statements of child

sexual assault and abuse victims;

 the forensic protocol of child sexual abuse interviews;

 victim/offender relationship dynamics;

 the process of memory; and

 suggestibility and factual situations where false

allegations and fabrications are common.

Young didn’t talk to any of the witnesses or read any of the reports

from this case.

¶ 55 Collins contends that portions of Young’s testimony were

inadmissible in two regards. First, he contends that Young’s

opinion that a particular pattern of disclosure isn’t unusual for a

child was impermissible. Second, he contends that Young’s opinion

that it would be uncommon for a child to lie about having

experienced a sexual assault was impermissible bolstering.

¶ 56 We agree that in both instances, the prosecutor’s line of

questioning was improper, but we conclude that the trial court’s

decision to allow Young to answer the prosecutor’s questions was

harmless.

2. Applicable Legal Principles
26
¶ 57 An expert witness may provide opinion testimony so long as

“the expert’s specialized knowledge will assist the jury in

understanding the evidence or in determining a fact in issue.”

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

¶ 58 An expert may not opine on a witness’s credibility or that a

witness was telling the truth on a specific occasion. Wittrein, 221

P.3d at 1081 (citing People v. Eppens, 979 P.2d 14, 17 (Colo. 1999)).

Thus, “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.” Id.

¶ 59 Although expert testimony isn’t permitted to bolster a victim’s

credibility, an expert may testify concerning whether a sexual

assault victim’s behavior or demeanor was consistent with the

typical behavior of victims of abuse. People v. Glasser, 293 P.3d 68,

78 (Colo. App. 2011). This type of testimony is admissible because

it assists the jury in understanding a child victim’s behavior after

the incident and explains why the victim acted the way he or she

did. People v. Relaford, 2016 COA 99, ¶ 28. Testimony that

provides relevant insight into the “puzzling” aspects of a child’s

27
behavior “is helpful and appropriate in cases of sexual abuse of

children.” Id. (quoting Whitman, 205 P.3d at 383).

3. Standard of Review

¶ 60 We review a trial court’s ruling on the admissibility of expert

testimony for an abuse of discretion. Kutzly v. People, 2019 CO 55,

¶ 8. A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or based on a

misapprehension of the law. People v. Salas, 2017 COA 63, ¶ 30.

¶ 61 Because Collins’s counsel objected to Young’s testimony at

trial, this issue is preserved, and we apply harmless error review.

See Hagos, ¶ 12. We will reverse only if the error “affects the

substantial rights of the parties” — that is, the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

1986)).

¶ 62 We now turn to the portions of Young’s testimony that Collins

challenges.

4. Pattern of Disclosure Expert Testimony

¶ 63 Collins contends that the trial court abused its discretion by

allowing Young’s opinion that a specific pattern of disclosure by a

28
child wasn’t unusual. The prosecutor questioned Young and

elicited the following testimony:

[Prosecutor]: Following a situation where there
is [sic] potentially multiple outcries leading to a
forensic interview where there’s no disclosure,
that [sic] then followed by subsequent multiple
outcries to a number of people, that then
followed by a forensic interview where there is
a disclosure, does that in your opinion indicate
anything with respect to that child’s
experience?

[Defense counsel]: Objection Your Honor based
on my previous record.9

THE COURT: At this time the objection is
overruled, again based on the record made at
the bench and the question that has been
specifically asked.

[Young]: So if I were thinking of a preschool or
younger child that there is a series of outcries
or certain behaviors, a formal interview where
there may not be any kind of an outcry to that
interviewer, followed by more outcries or
behaviors, I would not find that process or
history unusual in that age of a child where
there are allegations of sexual abuse.

(Emphasis added.)

9 Defense counsel had previously objected to a similar question
from the prosecutor, asking Young to opine on a situation in which
a “preschool aged child . . . crawl[ed] into bed naked with a
sibling . . . .” The trial court overruled the objection.
29
¶ 64 Collins contends that the hypothetical was so closely tailored

to the facts of the case that Young’s answer constituted an

improper opinion on the veracity of T.M.’s allegations. We agree

with Collins that the prosecutor’s question was improper.

¶ 65 The facts at issue in the case closely match the hypothetical

given to Young. T.M. disclosed several times to her father and step-

mother, but didn’t disclose when she was interviewed by a police

detective. But then T.M. later disclosed in an interview with a

different police detective.

¶ 66 The hypothetical therefore invited an improper opinion about

whether T.M.’s accusations should be believed notwithstanding her

disclosure pattern. It was calculated to elicit an opinion that T.M.’s

allegations of abuse were still reliable (i.e., that she was telling the

truth on a particular occasion). That isn’t a proper subject for

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

608(a) “applies to both direct and indirect implications of a child’s

truthfulness”); cf. People v. Cernazanu, 2015 COA 122, ¶ 21 (The

“general characteristics” of credibility that the witness testified to

“were not those of a class of victims who had experienced child

incest, sex assault, rape trauma, or the like. They were, instead,

30
‘characteristics’ peculiar to [the victim], which were directly

indicative of [the victim’s] credibility, and which were relevant only

to ascertaining whether [the victim] was telling the truth on a

specific occasion.” (emphasis in original)).

¶ 67 When a hypothetical is so closely tailored to the distinctive

facts of the case at hand, as it was here, the question ceases to be

about any child and, instead, becomes a question about the

particular child. Cernazanu, ¶ 21. And when the question is, as a

practical matter, about the child in this case, it risks calling for an

opinion of the credibility of that particular child. Id. Indeed, the

prosecutor asked Young to opine on a specific child — “does that in

your opinion indicate anything with respect to that child’s

experience?” — not just any child. See Venalonzo, ¶ 33; People v.

Snook, 745 P.2d 647, 649 (Colo. 1987) (testimony that another

witness is credible on a particular occasion is especially problematic

where the outcome of the case turns on which version of that

witness’s conflicting telling of events is worthy of belief).

¶ 68 While the question on its face was improper, Young’s answer

rendered the court’s erroneous decision to permit her to answer

harmless. Young didn’t opine on which disclosure was more

31
accurate or should be believed, but simply testified that it wasn’t

unusual for a child to engage in that particular disclosure pattern.

Young’s testimony didn’t amount to an opinion that T.M. was telling

the truth on a particular occasion. See Venalonzo, ¶ 33; Snook 745

P.2d at 649. While the prosecutor’s question ran the considerable

risk that it may have elicited an improper answer, the answer didn’t

run afoul of rules guiding expert opinion testimony. Thus, even

though the trial court erred by allowing Young to answer the

improper question, because the answer wasn’t improper, the error

was harmless.

5. Sophistication to Lie Expert Testimony

¶ 69 Next, Collins contends that the court erred when it allowed

Young to answer the prosecutor’s questions regarding a child’s

sophistication to lie about having been sexually assaulted.

¶ 70 Young testified that “children lie about did they do their

homework, did they clean their room, did they eat the last Pop-Tart

that their brother was supposed to have. Yes, those are common

behaviors and they are intended to avoid our disappointment

and avoid our disapproval.” She further testified, children are “not

sophisticated cognitively” enough to plan and calculate a lie against

32
another person. The prosecutor then elicited the following

testimony:

[Prosecutor]: Based upon your prior answer
you had in some ways distinguished preschool
aged children from other groups of children,
and so my question to you was that if in your
opinion do children generally have the
sophistication to lie about having experienced
sexual assault?

[Young]: It’s kind of on their own volition
independent of anybody else, do they in a
calculated, intentional way make up a lie
about — in an intentional type of way to get an
adult into trouble, it’s a pretty sophisticated act
and the vast majority of preschoolers
independently or on their own that would be
uncommon. To say that children can’t be
influenced or coerced into making statements,
that’s a different set of circumstances. If we’re
talking independently on their own they don’t
have that cognitive sophistication and
planning then I would stand by that.

(Emphasis added.)

¶ 71 The prosecutor’s question to Young is similar to the line of

questioning that was found to be improper in Snook. In Snook, an

expert testified that “children tend not to fabricate stories of sexual

abuse . . . .” Snook, 745 P.2d at 648. The court concluded that the

question elicited an answer from the expert that amounted to

improper bolstering of the victim’s credibility. Id. at 648-49. The

33
court reasoned that the “jury’s only conceivable use of such

testimony would be as support for the complainant’s truthful

character.” Id. at 649.

¶ 72 Similar to Snook, the prosecutor asked Young to comment on

whether a child was likely to fabricate sexual assault. Id. 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.” Wittrein, 221 P.3d at 1081. And Young’s testimony in

response — that lying about sexual assault to get “an adult into

trouble” is a “sophisticated act” that would be “uncommon”

behavior for a child to engage in — amounted to support for T.M.’s

credibility. Id. Thus, we conclude that the court erred by allowing

Young to answer the question posed by the prosecutor.

¶ 73 But the error was ultimately harmless, for three reasons.

¶ 74 First, Young’s testimony didn’t directly refute Collins’s theory

of defense. See People v. Kubuugu, 2019 CO 9, ¶ 16 (holding that

improperly admitted expert testimony wasn’t harmless because the

expert’s testimony “was the only evidence that specifically refuted”

the defendant’s exculpatory testimony). The central issue in the

case was which of T.M.’s disclosures the jury should believe — that

34
she was touched inappropriately by “Andy” or by Collins. Collins’s

theory of defense was that T.M. had (1) been abused by Andy and

(2) then subtly coerced by the adults in her life into naming Collins

as her abuser. But Young’s expert opinion centered on whether

children have the sophistication to lie about having been sexually

abused in the first place, not whether they lie about the identity of

the perpetrator. Indeed, during cross-examination, Young made it

clear she wasn’t opining on whether a child could be influenced but

whether children can craft a lie of their own volition. Simply put,

Young’s testimony in this regard didn’t refute Collins’s theory of

defense.

¶ 75 Second, Young’s testimony didn’t directly refute evidence from

Collins’s own expert. See People v. Casias, 2012 COA 117, ¶¶ 73-

75 (where experts didn’t directly dispute one another’s testimony,

the case was not “sharply disputed” and therefore, error in

admitting expert testimony was harmless). Collins called Dr. Esplin

to testify how children can be influenced to wrongfully name

someone as their abuser. Dr. Esplin’s expert opinion was not

refuted by Young’s expert opinion.

35
¶ 76 Third, Young’s testimony was brief. The trial lasted four days

and included the testimony of several experts. Additionally, the

prosecutor didn’t even mention Young’s testimony related to

children’s sophistication to lie in his closing argument. See Marsh

v. People, 2017 CO 10M, ¶ 42 (expert testimony didn’t contribute to

the verdict when the prosecutor didn’t rely on the testimony during

closing argument).

¶ 77 Therefore, we conclude that the testimony didn’t “substantially

influence the verdict or affected the fairness of the trial

proceedings.” Hagos, ¶ 12. Accordingly, its admission doesn’t

warrant reversal.

D. Sentencing

¶ 78 Finally, Collins contends, for the first time on appeal, that the

mittimus must be amended. We agree that the case must be

remanded to correct the mittimus.

¶ 79 Prior to closing arguments in the case, the prosecution moved

to dismiss the pattern charges. The trial court struck the pattern

language from count 2 — sexual assault on a child. Without the

pattern language, sexual assault on a child is a class 4 felony. See

§ 18-3-405(1), (2), C.R.S., 2020. But the mittimus still includes the

36
pattern language on count 2. The mittimus must be corrected to

reflect the “true nature of the crime of which defendant was

convicted.” People v. Malloy, 178 P.3d 1283, 1289 (Colo. App.

2008).

¶ 80 Accordingly, we remand the matter to the trial court with

directions to correct count 2 of the mittimus to reflect a conviction

for sexual assault on a child under section 18-3-405(1), (2), a

class 4 felony. See Crim. P. 36 (clerical mistakes in judgments may

be corrected by the court at any time).

III. Conclusion

¶ 81 For the reasons set forth above, the judgment and sentence

are affirmed. The case is remanded for correction of the mittimus.

JUDGE J. JONES and JUDGE GOMEZ concur.

37