relying on Thomas v. People, 803 P.2d 144 (Colo.1990), and Woertman v. People, 804 P.2d 188 (Colo. 1991), and holding that defendant's right to unanimous jury agreement was ensured because, (1) "although the trial court denied the defendant's pre-trial motion to compel an election, at the close of the trial, the trial court did compel the prosecutor to elect the specific incidents of conduct upon which it relied," (2) "the jury ultimately was instructed as to the specific incidents upon which the charges were based," and (3) the jury "was also given a unanimity instruction" (emphasis omitted)
How later courts described this case
- relying on Thomas v. People, 803 P.2d 144 (Colo.1990), and Woertman v. People, 804 P.2d 188 (Colo. 1991), and holding that defendant's right to unanimous jury agreement was ensured because, (1) "although the trial court denied the defendant's pre-trial motion to compel an election, at the close of the trial, the trial court did compel the prosecutor to elect the specific incidents of conduct upon which it relied," (2) "the jury ultimately was instructed as to the specific incidents upon which the charges were based," and (3) the jury "was also given a unanimity instruction" (emphasis omitted)
- concluding that the trial court did not' abuse its discretion in admitting pornographic magazines found in the defendant’s home under very similar circumstances
- determining that the statutory term “prior sexual conduct” includes prior sexual assaults suffered by the victim
- where the court held that the defendant's right to a unanimous jury was ensured because, (1) "although the trial court denied the defendant's pre-trial motion to compel an election, at the close of the trial, the trial court did compel the prosecutor to elect the specific incidents of conduct upon which it relied," (2) "the jury ultimately was instructed as to the specific incidents upon which the charges were based," and (3) the jury "was also given a unanimity instruction" (emphasis omitted)
Written by the judges who cited it.
The opinion
Chief Judge STERNBERG
dissenting.
In my view, the trial court erred both in permitting the deputy sheriff to testify about the content of B.H.’s statement to him and in admitting the evidence of the children’s out-of-court statements through the testimony of the psychologist without giving a cautionary instruction as mandat *830 ed by People v. McClure, 779 P.2d 864 (Colo.1989).
Also, I would hold that the court abused its discretion in admitting into evidence the hundreds of pages of pornographic material found in defendant’s home. In my view, the tenuous relevance of such material to bolster the credibility of C.H. was far outweighed by its prejudicial impact.
Accordingly, although I agree with the majority’s treatment of the other issues raised, I respectfully dissent from its affir-mance of the judgment.
I.
The Sexually Explicit Exhibits.
My first point of disagreement with the majority relates to the trial court ruling that accepted into evidence seven magazines containing hundreds of pages of photographs and text depicting explicit, graphic, bizarre sexual behavior by adults. Some of this material consists of photographs prominently displaying individuals apparently possessing both male and female sexual characteristics. Other photos depict “devices” for use in deviant sexual acts. In my view, admitting into evidence this explosively prejudicial material merely to bolster the testimony of the child witness that, while in the basement of defendant's house, she had been shown nude photographs was an abuse of discretion.
The primary impact of this material would be to inflame the average juror to whom such material would be unfamiliar, highly offensive, and possibly even disgusting and sickening. This could lead jurors to reach the emotional conclusion that defendant is a “bad” person deserving punishment irrespective of whether the particular charges here at issue had been proven. Thus, any valid purpose of bolstering C.H.’s testimony must have been lost in the hostility engendered by the material.
I recognize that appellate review of relevancy decisions is limited and that “we must assume the maximum probative value that a reasonable fact-finder might give the evidence and the minimum unfair prejudice to be reasonably expected.” People v. Lowe, 660 P.2d 1261 (Colo.1983). Nevertheless, even applying this strict standard of review, I would hold it was error to admit this evidence.
Three questions face the trial court in applying CRE 403: 1) is the proffered evidence legally material to a factual issue in the case; 2) does the evidence make the existence of a consequential fact more or less probable than it would be without the evidence; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice. People v. Carlson, 712 P.2d 1018 (Colo.1986).
The probative value of the magazines was minimal. The record indicates only that the court believed that, because the magazines were found where C.H. had said they were, they corroborated her testimony. However, C.H. was not asked to identify the magazines as being those the defendant had shown her, and, indeed, most of them appear to be of a different type than she described. Furthermore, no essential element of the charged criminal acts depended for its proof on the admission of the magazines. And, the existence and nature of the magazines could have been established through the deputy’s testimony without their prejudicial nature being revealed to the jury. See United States v. Layton, 767 F.2d 549 (9th Cir.1985) (availability of other evidence is a factor to be evaluated in balancing probative value and prejudicial impact).
By contrast, the prejudicial impact of the magazines was significant. Unfair prejudice, as the term is used in CRE 403, refers to evidence which tends to suggest decision on an improper basis, commonly an emotional one “such as sympathy, hatred, contempt, retribution, or horror.” People v. District Court, 785 P.2d 141 (Colo.1990).
If ever there is a case in which the scale used to weigh probative value against unfair prejudice tilts strongly toward the latter, this is such a case.
II.
A.
Deputy’s Testimony about B.H.’s Hearsay Statements.
The only evidence presented concerning any alleged acts by defendant directed to *831 ward B.H. were those reported in the deputy’s testimony. Indeed, B.H. specifically testified at trial that the defendant did not do “anything bad” to her. Thus, conviction of defendant on the sexual assault count concerning B.H. hinges on this hearsay testimony.
The majority reasons that the testimony of the deputy about what B.H. had previously told her was properly admitted as a prior inconsistent statement to impeach or to establish a substantive fact. However, before such testimony can be received, the witness to be impeached must be given an opportunity to explain or deny the prior inconsistent statement, or must be available to testify further at the trial, and the statement must relate to matters within the witness’ own knowledge. Montoya v. People, 740 P.2d 992 (Colo.1990).
The first of these requirements was not satisfied in B.H.’s trial testimony. Although the child was questioned about her earlier statement to the deputy sheriff, her answers were neither an explanation nor a denial.
Also, in my view, the trial court erred in finding that B.H. was “available” to testify. Contrary to the majority, I perceive no evidentiary support for the trial court’s finding. Instead, the record demonstrates that B.H. did not qualify as a competent witness.
The testimony of B.H. was so fraught with inconsistencies and illogical statements as not to be credible. She was unsure about the difference between truth and lies. Her responses to both the prosecutor and defense counsel were unresponsive and confusing. And, she was unable to understand temporal relationships, as shown by her testimony that she had known M.W. for ten years, although she was only seven at the time she testified.
Because § 16-10-201 creates a statutory exception which permits hearsay evidence to be admitted to prove a substantive fact, it is particularly important that there be opportunity to examine the witness who made the prior inconsistent statement concerning the discrepancy. In my view, the foundational requirements of § 16-10-201, which insures that such examination is possible, were not satisfied here. Consequently, the deputy’s testimony should not have been admitted as the report of a prior inconsistent statement.
Although the deputy’s testimony was not admissible under a specific hearsay exception, the testimony might properly have been admitted pursuant to § 13-25-129 had the court followed the procedural requirements of that statute. It did not do so, and although neither the defendant nor the prosecution requested the court to give the cautionary instructions required by the statute, such failure constitutes reversible error. See People v. McClure, supra.
B.
The Psychologist’s Hearsay Testimony.
I also disagree with the majority’s conclusion that the psychologist’s testimony concerning out-of-court statements by M.W. was properly received.
I do agree with the majority that much of the psychologist’s testimony was not improper. However, that conclusion begs the question.
When the psychologist testified as to specific statements made by M.W. to her, such evidence would have been properly received, if and only if, the dictates of People v. McClure, supra, had been followed. However, a contemporaneous cautionary instruction was not given when the testimony was received, nor was a cautionary instruction given at the conclusion of the case. Failure to so instruct under the situation here requires reversal. Reference to just some of the objectionable out-of-court statements follows.
In discussing what M.W. told her the during the course of therapy, the psychologist stated:
And then she went through, uh, the when, the where, the how in the interviewing process.... There were several places that she indicated, at the creek, in the living room and in the shower where she described different, uh, sexual activities that were taking place at those *832 times. She described ... the rings on the penis that she had seen when they were taking a shower together. And also at the creek as she described as the skinny dipping event, the shower event took place two or three times. She described in specific detail that she felt what she called his private part rubbing up on her back.
And, in describing the use of “child language,” the psychologist testified that:
She [M.W.] described an event where they were in the tent with as she indicated Mr. Aldrich and he had taken their tops off of all three girls and would not give them back. She described, uh, the two or three incidents in the shower.
These circumstances are comparable to those which concerned the McClure court — expert testimony which might be imbued by the jury with special credibility together with details of the conduct corroborating other testimony. As the McClure court stated, in the absence of a cautionary instruction making the jury aware of the suspect nature of hearsay evidence, here, “the jury may have failed in its responsibility to examine the credibility of the source of these statements.”
In conclusion, I recognize, as does the majority, that sexual abuse of children is a serious and seemingly growing problem in our society and that when such a crime is proved to have occurred severe punishment is justified. Nevertheless, we cannot allow our disgust at the crime to cause us to circumvent established principles of evidence. Especially is that true under the circumstances here in which the law already provides for reasonable exceptions to strict evidentiary requirements with safeguards against unfairness to defendants.
For the reasons stated above, I respectfully dissent from the majority opinion; I would reverse the conviction and remand for a new trial.