in the Interest of D.F.A.E

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.

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¶ 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

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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

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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.

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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

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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.”

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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

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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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