Peo v. Smith

21CA1243 Peo v Smith 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1243
Jefferson County District Court No. 18CR3904
Honorable Jeffrey R. Pilkington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony James Smith,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE GROVE
Lum and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Andrew Gargano, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Anthony James Smith, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of three

counts of sexual assault on a child by one in a position of trust

involving a victim less than fifteen years old, along with three

counts of child abuse. We affirm.

I. Background

¶2 In 2018, M.P., Smith’s stepdaughter, told her maternal aunt

that Smith sexually assaulted her. M.P.’s aunt contacted the police

and, after an investigation, Smith was arrested and charged with

sexual assault. During the investigation, Smith’s two biological

daughters, G.S. and E.S., were interviewed. Neither child initially

disclosed any instances of sexual abuse, but they both later

revealed to their psychotherapist that Smith had sexually assaulted

them. The prosecutor subsequently moved to amend the

information to include additional counts naming G.S. and E.S. as

victims. Through counsel, Smith consented to the joinder of these

charges. Later, however, after he obtained a new attorney, Smith

moved to sever the charges into three separate cases, one for each

child. The motion was denied.

1
¶3 At trial, Smith theorized that (1) the three children fabricated

the allegations of sexual assault to escape their unhealthy home

environment and their parents’ neglect, and (2) the specific

allegations made by the children were influenced by leading,

suggestive questioning by other adults. Consistent with these

theories, Smith requested and received instructions on the lesser

nonincluded charge of child abuse and asked the jury to convict

him of only that offense.

¶4 The jury found Smith guilty on all counts and the trial court

subsequently sentenced him to twenty years to life in the custody of

the Department of Corrections. Smith appeals, contending that the

trial court reversibly erred by (1) joining, and then failing to sever,

the charges as to each victim, (2) allowing improper opinion

testimony from the prosecution’s expert witness, and (3) limiting the

testimony of the defense’s expert witness. He also argues that (4)

the cumulative effect of the errors he has alleged deprived him of a

fair trial. We address each of Smith’s contentions below.

II. Joinder

¶5 Smith contends the trial court reversibly erred when it allowed

the prosecution to amend the complaint to join the charges

2
involving each of the three children. We do not address this

contention on the merits because we conclude it was waived.

A. Additional Facts

¶6 As originally filed, the charges against Smith named M.P. as

the sole victim. During pretrial discovery on the charges involving

M.P., Smith’s counsel repeatedly requested documents detailing

statements that G.S. and E.S. made to investigators during the

investigation that was triggered by M.P.’s outcry. Although counsel

was aware that G.S. and E.S. had both reported sexual abuse by

Smith, his goal was to show that their stories — like M.P.’s — had

changed over time, and that each child’s delayed outcry was

actually the result of suggestion by their psychotherapists or other

adults.

¶7 Because, at the outset of the case, Smith only faced charges

related to M.P., the trial court initially denied Smith’s requests on

relevance grounds. Nevertheless, Smith’s counsel continued to

push for the discovery, arguing that it was relevant to his trial

strategy. After it became clear that Smith’s counsel wanted

evidence of G.S.’s and E.S.’s allegations admitted into evidence, the

prosecutor moved to amend the complaint to include charges of

3
sexual assault related to G.S.’s and E.S.’s allegations. Although

defense counsel stated that he did not “want . . . the additional

charges to be filed,” he agreed that joinder “would be more effective

and more efficient” and stated that he “would have no objection to

joining those charges with these charges.”

B. Analysis

¶8 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). “A waiver may

be explicit, as, for example, when a party expressly abandons an

existing right or privilege, or it may be implied, as when a party

engages in conduct that manifests an intent to relinquish a right or

privilege or acts inconsistently with its assertion.” Forgette v.

People, 2023 CO 4, ¶ 28.

¶9 Smith’s counsel explicitly waived this issue by stating that he

had “no objection” to joining the soon-to-be-added charges involving

G.S. and E.S. to the existing charges involving M.P. See People v.

Lopez, 2024 COA 26, ¶ 40 (issue waived by counsel’s concession at

trial); People v. Quillen, 2023 COA 22M, ¶ 51 (issue whether record

admitted into evidence should have been redacted was waived

4
where the prosecutor offered to make redactions, but defense

counsel declined the offer). The record demonstrates that counsel’s

decision not to object was part of his trial strategy. Indeed, his

strategic approach to the case depended on his ability to highlight

similarities in the evolution of each child’s story over time. Counsel

made it plain that he was willing to accede to joinder if doing so

would make discovery related to G.S. and E.S. — which he hoped

would support this strategy — available.

¶ 10 “[W]aiver extinguishes error, and therefore appellate review.”

Rediger, ¶ 40. By agreeing that impending charges involving G.S.

and E.S. could be joined with the existing charges involving M.P.,

Smith’s counsel waived the issue, and we need not consider it

further.

III. Severance

¶ 11 Smith contends that the trial court erred by denying his

motion to sever the charges against him. We disagree.

A. Additional Facts

¶ 12 Some time after the prosecution amended the complaint to

add the charges involving G.S. and E.S., Smith’s original counsel

retired from the practice of law and a new attorney was appointed.

5
Smith’s new attorney moved to sever the counts involving each

victim into three separate trials. The trial court denied the motion.

B. Standard of Review and Applicable Law

¶ 13 Crim. P. 14 governs a defendant’s motion to sever charges into

separate trials. Crim. P. 14 provides that, “[i]f it appears that a

defendant or the prosecution is prejudiced by a joinder of

offenses . . . in any indictment or information, or by such joined for

trial together, the court may order an election or separate trials of

counts . . . .” Like a trial court’s decision to permissively join

charges, “[w]hether to grant a motion to sever is within the sound

discretion of the trial court, and we will not disturb that decision

absent an abuse of discretion.” People v. Pasillas-Sanchez, 214

P.3d 520, 530 (Colo. App. 2009). “An abuse of discretion occurs

when (1) the joinder caused actual prejudice to the defendant, not

merely a difference in trial strategy arising from the joint trial of

separate offenses, and (2) the trier of fact was not able to separate

the facts and legal principles applicable to each offense.” Id. The

defendant is not prejudiced if evidence of each offense would have

been admissible in separate trials. Buell v. People, 2019 CO 27,

¶¶ 30-31.

6
C. Analysis

¶ 14 In a written order denying Smith’s motion to sever, the court

concluded that Smith would not be actually prejudiced by a joint

trial for the following reasons:

• The three counts and evidence were interconnected by

time, actions, locations, and participants.

• Smith had “continue[d] to request that evidence of the

sexual assaults of the three child victims be admitted at

trial, whether the trial be for a single child victim or

multiple trials for each child victim.”

• Smith did not make a showing that he had important

testimony to give regarding the charges involving one of

the children and a strong need to refrain from testifying

on another.

¶ 15 The court also found that the evidence involving each child

would be cross-admissible as res gestae because it would “help[] the

jury understand the nature of the sexual assaults.” Then, turning

to the second element of the test under Crim. P. 14, the court found

that Smith did not establish that the jury would be unable to

separate the facts and legal principles as to each count.

7
1. CRE 404(b)

¶ 16 To determine whether the trial court properly denied Smith’s

motion for severance, we must first address the changes in law

since the court issued its order. The trial court’s ruling rested at

least in part on the res gestae doctrine, which the Colorado

Supreme Court abolished in 2022. See Rojas v. People, 2022 CO 8,

¶¶ 40-41. This change occurred after Smith’s trial on the joint

charges but while his direct appeal was still pending. Thus, Rojas

applies retroactively as controlling law for Smith’s appeal. See

People v. Morse, 2023 COA 27, ¶ 51 (“Although Rojas was decided

after [the defendant’s] trial, judicial decisions generally apply

retroactively to cases on direct appeal. And indeed, the supreme

court applied its holding in Rojas to the prior trial in that case.”)

(citation omitted); Rojas, ¶¶ 53-56. Accordingly, rather than

deciding whether the trial court erred in applying the law at the

time it ruled by partially relying on res gestae, we review its rulings

under the new scheme established in Rojas.

¶ 17 Because Rojas abolished res gestae, Colorado courts must now

determine whether other acts evidence triggers a Rule 404(b)

analysis by determining whether the evidence is “intrinsic or

8
extrinsic to the charged [offense].” Rojas, ¶ 52. “Intrinsic acts are

those (1) that directly prove the charged offense or (2) that occurred

contemporaneously with the charged offense and facilitated the

commission of it.” Id. “Evidence of acts that are intrinsic to the

charged offense are exempt from Rule 404(b) because they are not

‘other’ crimes, wrongs, or acts.” Id.

¶ 18 The People do not address Rojas or res gestae in their

appellate briefing, but they do argue that the evidence of each

incident would have been cross-admissible in separate trials

because it was admissible under CRE 404(b). Thus, we do not

consider whether the evidence of each incident would have been

admissible in separate trials because it was intrinsic to each

offense, but instead conduct a CRE 404(b) analysis.

¶ 19 Other acts evidence is admissible under People v. Spoto, 795

P.2d 1314, 1318 (Colo. 1990), if (1) the evidence relates to a

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

relevance is independent of the prohibited intermediate inference

that the defendant was acting in conformity with his bad character,

and (4) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice. See Bondsteel v.

9
People, 2019 CO 26, ¶ 50 (citing Spoto, 795 P.2d at 1318). All four

elements of the Spoto test are met here.

¶ 20 First, the evidence involving each child tended to show that

each offense was part of a common scheme or plan, and thus

related to a material fact. “In order for two or more acts to

constitute a scheme, they must have a nexus with each other from

which a continuous scheme or common design can be discerned.”

People v. George, 2017 COA 75, ¶ 83 (quoting People v. Close, 867

P.2d 82, 87 (Colo. App. 1993)). The prosecution’s evidence

established that nexus. It included allegations by G.S. and E.S.

that Smith inappropriately touched the outside of their vaginas in a

similar manner, multiple times (and often at bedtime), in different

areas of the home while they were under his care. Evidence

relating to M.P.’s allegations was broader and more extensive, but it

also included incidents of Smith inappropriately touching the

outside of her vagina, multiple times, in different areas of the home

while she was under his care, often at bedtime.

¶ 21 Second, the evidence was logically relevant. The General

Assembly “has expressly noted that evidence of other sexual acts is

particularly important and will typically be admissible in the

10
prosecution of sexual offenses.” Bondsteel, ¶ 48 (citing § 16-10-

301(1), C.R.S. 2024). And here, the similarities between each of the

children’s allegations lent support to the prosecution’s theory that

the assaults shared a “common plan, scheme, design or modus

operandi.” § 16-10-301(3).

¶ 22 Third, the similarities in the children’s allegations made it

more likely than not that Smith committed each of the charged

counts and provided evidence of Smith’s guilt independent of the

prohibited propensity inference. Spoto, 795 P.2d at 1318.

¶ 23 Fourth, based on our review of the record, we are convinced

that the evidence concerning the assaults involving each child was

highly probative, and the probative value of that evidence was not

substantially outweighed by the danger of unfair prejudice. Id.; see

also § 16-10-301(1) (“The general assembly finds that such evidence

of other sexual acts is typically relevant and highly probative, and it

is expected that normally the probative value of such evidence will

outweigh any danger of unfair prejudice, even when incidents are

remote from one another in time.”).

¶ 24 Thus, although we rely on somewhat different grounds than

the trial court in the wake of Rojas, we agree with its conclusion

11
that the evidence involving each child would have been cross-

admissible in the event that the charges against Smith were

severed.

2. Ability to Testify

¶ 25 Smith also contends that he suffered actual prejudice because

he wanted to testify regarding some, but not all, of the counts

against him, and the trial court did not offer to restrict cross-

examination or provide a limiting instruction. In particular, Smith

suggests that, had the charges involving E.S. been severed, he

would have defended himself by testifying that the actions she

described were not assaults but instead “culturally normative

behavior.” Smith acknowledges that he could not have offered the

same sort of explanation regarding M.P.’s allegations. Thus, he

claims, as a result of the trial court’s refusal to sever the counts, he

was forced to forgo rebutting E.S.’s allegations with his own

testimony due to the risk of a broad cross-examination that covered

his interactions with all of the children.

¶ 26 The trial court concluded that Smith failed to convincingly

show he had “important testimony to give concerning one count and

strong need to refrain from testifying on the other.” People v.

12
Walker, 542 P.2d 1283, 1287 (Colo. 1975) (citation omitted). We

agree with that conclusion and also observe that the cross-

admissibility of the evidence involving each of the children

undercuts Smith’s suggestion that, had the counts been severed,

the scope of his cross-examination could properly have been

limited. In short, even if the court had granted Smith’s motion to

sever the charges, the evidence surrounding each charge would still

have been admissible in all three of the cases. Thus, we are

unpersuaded that the court’s denial of the motion to sever could

have had any practical effect on Smith’s decision whether to testify

in his own defense.

3. Ability to Separate Fact and Law

¶ 27 Smith also argues that denying his motion for severance

created a risk that the jury would be unable to separate the facts

and legal principles as to each count. To find an abuse of

discretion, however, we must conclude both that the joinder

resulted in actual prejudice and that the jury could not distinguish

the facts and law applicable to each case. Pasillas-Sanchez, 214

P.3d at 530; see also People v. Rosa, 928 P.3d 1365, 1373 (Colo.

App. 1996). As we have already explained, we do not believe that

13
Smith suffered actual prejudice from the joinder because even if the

court had tried the cases separately, the jury would likely have

heard evidence of the other crimes. See Bondsteel, ¶ 61. Because,

to find an abuse of discretion, we must conclude both that the

joinder resulted in actual prejudice and that the jury could not

distinguish the facts and law applicable to each case, we need not

address the latter.

4. Law of the Case

¶ 28 For two reasons, we also briefly reject Smith’s argument that

the court “departed from the law of the case without good cause”

when it walked back its initial ruling that there was “[n]o way” that

evidence relating to E.S. and G.S. would be admitted during the

trial on the charges involving M.P. First, even if the court’s

comments were actually rulings — and that is not at all clear — the

law of the case doctrine does not “prevent a court from revisiting its

own prior rulings, particularly where those rulings are no longer

sound due to changed conditions of law.” Owners Ins. Co. v. Dakota

Station II Condo. Ass’n, 2021 COA 114, ¶ 23. And second, when the

court made these comments, the prosecution had not yet filed

charges against Smith for his conduct involving E.S. and G.S. Once

14
the prosecutor did so and the charges were joined for trial, the

relevancy calculus shifted dramatically, and any constraints that

might have been imposed by the doctrine of the law of the case no

longer existed.

IV. Prosecution’s Expert Testimony

¶ 29 Smith next contends the district court erred by permitting a

prosecution expert, Suvi Miller, to testify as a generalized expert

because (1) she was not qualified to do so, (2) her testimony was not

helpful to the jury, and (3) her testimony served to bolster the

credibility of M.P., G.S., and E.S. We disagree.

A. Additional Facts

¶ 30 Before trial, the prosecution endorsed Miller as a generalized

expert in child sex assault behavior. Like all generalized experts,

Miller was not familiar with the facts of the case and had not

interviewed the children. Instead, the prosecution offered her

testimony in an effort to shed light on the nature of victim behavior

that might seem counterintuitive to a lay juror. Over a defense

objection, the court admitted Miller as an “expert in child abuse

and sexual behavior, dynamics, and response.”

15
¶ 31 Miller’s testimony addressed how child sexual assault victims

generally disclose abuse. She discussed delayed disclosure,

including how often it occurs and why it happens, how age factors

into disclosure, and what can trigger disclosure. She also

discussed behaviors of children who have been sexually assaulted,

and children’s memories in relation to traumatic events.

B. Standard of Review and Applicable Law

¶ 32 We review a trial court’s evidentiary rulings for an abuse of

discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. We will reverse a

decision if it is “manifestly arbitrary, unreasonable, or unfair.” Id.

¶ 33 CRE 702 governs the admission of expert testimony. People v.

Glasser, 293 P.3d 68, 78 (Colo. App. 2011). Exercising its

gatekeeping function when deciding whether to admit expert

evidence, a district court must “focus on the reliability and

relevance of the proffered evidence” and determine “(1) the reliability

of the scientific principles, (2) the qualifications of the witness, . . .

(3) the usefulness of the testimony to the jury,” and (4) whether the

evidence meets the test of CRE 403. People v. Shreck, 22 P.3d 68,

70 (Colo. 2001).

16
¶ 34 Proffered expert testimony is helpful if it will assist the fact

finder to understand other evidence or determine a fact in issue.

People v. Cooper, 2021 CO 69, ¶ 48. Helpfulness turns on whether

the expert’s testimony “fits the particular case.” Id. at ¶ 49.

Generalized expert testimony is permissible if the testimony “has a

sufficient logical connection to the factual issues to be helpful to the

jury while still clearing the ever-present CRE 403 admissibility bar.”

Id. at ¶ 3. Our case law recognizes that “‘[a]n expert may testify as

to the typical demeanor and behavioral traits displayed by a

sexually abused child,’ . . . because it assists the jury in

understanding the victim’s behavior after the incident — why the

victim acted the way he or she did.” People v. Short, 2018 COA 47,

¶ 13 (citation omitted). This type of expert testimony “aid[s] the jury

in understanding the typicality of reactions by [children] who have

been subjected to sexual abuse that might, under other

circumstances, be considered bizarre.” Id. (citation omitted).

1. Qualification As An Expert Witness

¶ 35 “Under CRE 702, an expert witness may be qualified through

any of the five enumerated factors: knowledge, skill, experience,

training, or education.” People v. Douglas, 2015 COA 155, ¶ 71.

17
Such a witness is not required to hold a specific degree, training

certificate, accreditation, or membership in a professional

organization, in order to testify on a particular issue. Id. Instead,

the witness need only provide an understandable explanation of his

or her qualifications. Id.

¶ 36 Smith asserts that Miller was unqualified to testify as an

expert in the fields of child abuse and sexual behavior, dynamics,

and response because “she had no degree or certification in this

field.” The holding in Douglas puts that argument to rest. Id. And

in any event, Smith concedes Miller has “a degree in social work

and experience treating families and children on an outpatient

basis as a licensed clinical social worker,” and the record reflects

that she provided a lengthy explanation of her qualifications and

experience. The trial court therefore did not abuse its discretion in

finding that she was qualified to testify under CRE 702.

2. Fit and Improper Bolstering

¶ 37 Smith next claims Miller’s testimony improperly bolstered the

victims’ credibility rather than educate the jury and that her

18
testimony did not “fit” the case enough to help the jury determine

facts at issue.1

¶ 38 Divisions of this court have routinely rejected arguments that

expert testimony similar to what Miller presented in this case

improperly bolstered victims’ credibility. See Short, ¶¶ 10, 20

(holding a therapist who had no familiarity with the victim or facts

of the case did not bolster the victim’s testimony when she

answered hypothetical questions regarding general sexual assault

victims’ disclosure patterns and inconsistent statements); People v.

Rail, 2016 COA 24, ¶ 66 (considering similar testimony and

observing that “numerous Colorado cases have upheld the

admission of comparable expert testimony from similarly qualified

experts, concluding that the testimony was helpful and not unfairly

prejudicial”); Glasser, 293 P.3d at 78 (explaining that “expert

1 As support for his bolstering argument, Smith relies heavily on the

holding Venalonzo v. People, 2017 CO 9, in which the Colorado
Supreme Court concluded that a forensic interviewer improperly
bolstered the victims’ testimony by asserting that many of the
behaviors she observed were consistent with other child sex assault
victims she’d interviewed. Id. at ¶ 35. Venalonzo is distinguishable,
however, because it did not involve a generalized expert, but instead
an expert who personally interviewed the victims and described
their statements and demeanor as part of her testimony. See
People v. Short, 2018 COA 47, ¶ 18.

19
testimony about the general behavior of sexual assault victims may

be helpful to the jury and may therefore be admissible,” and

concluding the testimony was not unfairly prejudicial).

¶ 39 Miller’s testimony in this case parallels the general experts’

testimonies in Short, Glasser, and Rail. Miller was not familiar with

the victims’ allegations and had never met any of them. She limited

her testimony to a general discussion of the behavior of sexual

assault victims, contextualizing why sexual assault victims may

delay reporting or appear to have faulty memories. And she did not

opine as to the children’s credibility or whether they had been

sexually assaulted.

¶ 40 Miller’s testimony was also a close “fit” to the facts of this case

because it was helpful to the jury. Smith’s theory of defense was

that the children fabricated their allegations to escape their home

life and that the evolution of their allegations over time was the

result of suggestive questioning by other adults. During cross

examination, defense counsel sought to undermine the victims’

credibility by questioning their memories, sequencing of events,

highlighting their delays in reporting assaults, and pointing out

inconsistencies in their stories. Miller’s testimony provided a

20
scientific, alternative explanation for the victims’ behavior and

allowed the jury to make an informed determination as to the

plausibility of defense counsel’s arguments.

¶ 41 Accordingly, we conclude that the trial court did not abuse its

discretion when it admitted Miller’s testimony. See People v.

Relaford, 2016 COA 99, ¶ 31 (holding that testimony similar to

what Miller offered in this case is considered proper because it “(1)

relates to an issue apart from credibility and (2) only incidentally

tends to corroborate a witness’s testimony” (quoting People v.

Cernazanu, 2015 COA 122, ¶ 20)); Cooper, ¶¶ 52-53, (“[G]eneralized

expert testimony fits a case if it has a sufficient logical connection

to the factual issues to be helpful to the jury while still clearing the

ever-present CRE 403 admissibility bar . . . [but] the fit need not be

perfect.”).

V. Defense Expert Testimony

¶ 42 Smith argues the district court reversibly erred when it

declined to recognize his expert witness, Susan Cave, in the field of

child suggestibility and susceptibility, and instead found her

qualified as an expert in the field of forensic child interviewing. He

also contends that the court erred when it refused to allow Cave to

21
testify about the impact of the forensic interview on the children’s

disclosures. We disagree on both points.

A. Standard of Review

¶ 43 We review a trial court’s ruling on the admission of expert

testimony for an abuse of discretion. People v. Ruibal, 2015 COA

55, ¶ 16, aff’d, 2018 CO 93. We apply the nonconstitutional

harmless error standard to evidentiary rulings that do not prevent a

defendant from subjecting the prosecution’s case to meaningful

adversarial testing. See Krutsinger v. People, 219 P.3d 1054, 1058

(Colo. 2009).

¶ 44 Under the nonconstitutional harmless error test, the

defendant bears the burden of establishing that there was a

reasonable probability that the court’s error contributed to his

conviction. Short, ¶ 54. A “reasonable probability” does not mean

that it is “more likely than not” that the error caused the

defendant’s conviction; rather, it means only a probability sufficient

to undermine confidence in the outcome of the case. People v.

Casias, 2012 COA 117, ¶ 63.

22
B. Scope of Qualification under CRE 702

¶ 45 Before trial, the defense endorsed Cave as an expert in “child

forensic interviewing” and “child suggestibility and susceptibility.”

The prosecution objected, raising concerns over a letter from Cave

that included an opinion about the credibility of one of the children

during a forensic interview. In response, the defense clarified the

scope of Cave’s anticipated testimony and agreed that Cave should

not opine on the credibility of the victim. In a reply, the prosecution

stated that it did not object to Cave testifying about the proper

procedures and protocol for conducting child forensic examinations

and whether the interviewers in this case adhered to those

procedures and protocols. The prosecution also stated that it would

not object to testimony from Cave on “child susceptibility and

suggestibility, generally.”

¶ 46 At trial, the court refused to admit Cave as an expert in child

suggestibility and susceptibility because it did not “think that is an

area of expertise.” The court did, however, admit Cave as an expert

in the field of forensic interviewing, and she testified at length about

proper procedures in forensic interviews that prevent and cause

susceptibility.

23
¶ 47 Smith argues that the court abused its discretion by refusing

to approve Cave as an expert in the area of child susceptibility and

suggestibility despite the fact that this category of expertise has

been recognized by courts in other jurisdictions. Assuming,

without deciding, that the court’s ruling was error, it was harmless.

Simply put, the label put on Cave’s category of expertise did not

affect the scope of her testimony. And, as noted, Cave testified at

length about the topics that the defense had proposed, and the trial

court had already approved, in pretrial motions practice.

C. Barred Testimony

¶ 48 Lastly, Smith contends the trial court erred because it barred

Cave’s testimony on “the impact of the forensic interview on the

children’s disclosures” because the testimony went “to the

credibility of the witnesses.” According to Smith, when the court

ruled, it improperly conflated the terms “reliability” and “credibility”

and therefore improperly restricted the scope of Cave’s testimony.

¶ 49 “In Colorado, neither lay nor expert witnesses may give

opinion testimony that another witness was telling the truth on a

specific occasion.” People v. Wittrein, 221 P.3d 1076, 1081 (Colo.

2009). However, “general testimony about the signs of coaching, as

24
well as the presence or absence of those signs in the child victim at

issue, preserves the ultimate credibility determination for the jury

and therefore does not constitute vouching.” People v. Bridges,

2014 COA 65, ¶ 16 (emphasis added) (citation omitted).

¶ 50 While addressing the scope of Cave’s expert testimony at a

pretrial hearing, the court noted that it would not permit expert

testimony on “the impact of the forensic interview on the children’s

disclosures,” a category that the defense had previously indicated

Cave would discuss. The court clarified that its ruling meant that

Cave should not “get close to any opinions about these children. I

will shut it down.” The court then went on to reiterate that Cave

could testify about (1) the correct forensic investigation procedures,

(2) why these procedures must be in place, and (3) how the

procedures were or were not followed.

¶ 51 We perceive no error in this ruling. Colorado law is clear that

“[a] witness may not opine with respect to whether another person

was telling the truth on a specific occasion.” Cernazanu, ¶ 11

(collecting cases). To the extent that Smith contends that Cave

should have been permitted to address the specifics of any of the

25
children’s behavior during their interviews, the trial court

appropriately prohibited her from doing so.

VI. Cumulative Error

¶ 52 Smith contends that the cumulative effect of the trial court’s

errors requires reversal of his convictions. “The doctrine of

cumulative error requires that numerous errors be committed, not

merely alleged.” People v. Carter, 2015 COA 24M-2, ¶ 80 (citation

omitted). Because the trial court here did not commit multiple

errors, there was no cumulative error.

VII. Disposition

¶ 53 We affirm the district court’s judgment.

JUDGE LUM and JUDGE BERNARD concur.

26