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holding that Colorado's tender-years exception "was not intended to sanction the use of one of the child's hearsay statements as corroborative evidence of the act described in another hearsay statement made by the same child"
Summary of this case from Pitts v. StateOpinion
No. 89SC43
Decided November 13, 1990. Rehearing Denied December 10, 1990.
Certiorari to the Colorado Court of Appeals
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, John Daniel Dailey, Deputy Attorney General, for Petitioner.
Richard A. Hostetler, Special Deputy Public Defender, for Respondent.
We granted the People's petition for certiorari to review the court of appeals' decision in People v. Bowers, 773 P.2d 1093 (Colo.App. 1988), which reversed the conviction of the defendant, Dwight Allen Bowers, for aggravated incest and sexual assault, and remanded the case to the district court for a new trial because of the erroneous admission into evidence of the unavailable child-victim's hearsay statements describing the sexual acts allegedly committed against the child. In reaching this result, the court of appeals held that the People failed to establish the necessary foundational requirements for admitting the child's hearsay statements into evidence under the residual hearsay exceptions created by CRE 803(24) and CRE 804(b)(5) and also failed to satisfy the "reliability" and "corroborative evidence" foundational requirements for admitting the statements under section 13-25-129, 6A C.R.S. (1987). We hold that the only basis for admitting the unavailable child-victim's hearsay statements is section 13-25-129 and that, although the "reliability" requirement of the statute was satisfied, the People failed to establish the statutory requirement that there be "corroborative evidence of the act which is the subject of the [child's] statement." We accordingly affirm the judgment of the court of appeals.
I.
The defendant was charged with the class 3 felonies of aggravated incest and sexual assault by one in a position of trust. Both offenses were alleged to have been committed against the defendant's three-year-old daughter, whom we will refer to as K.B., between March 14 and April 16, 1985. The prosecution's case was based on statements made by K.B. to several other persons, in which K.B. described the sexual acts committed against her.
§ 18-6-302, 8B C.R.S. (1986).
§ 18-3-405, 8B C.R.S. (1986).
At the commencement of the trial, the district court, outside the presence of the jury, conducted a hearing for the purpose of determining the admissibility of K.B.'s hearsay statements. The prosecution offered such statements under the residual hearsay exception created by CRE 803(24) for both available and unavailable witnesses, the residual hearsay exception created by CRE 804(b)(5) for unavailable witnesses, and the statutory exception created by section 13-25-129, 6A C.R.S. (1987), for a child-victim of a sexual assault. At the outset of the hearing, the prosecution called K.B. to the witness stand. The prosecuting attorney asked K.B., who was then four and one-half years old, very basic questions, such as her name, age, and whether she could identify her parents in the courtroom. The child answered these questions but only with great reluctance and by nodding. The trial court, after observing K.B.'s behavior on the witness stand, determined that the child was not competent to testify at trial.
The prosecution then made an offer of proof with respect to the child's statements. The offer of proof closely paralleled the evidence later admitted at trial and outlined the following sequence of events. On April 16, 1985, a fifteen-year old babysitter was caring for K.B. and her younger brother. While the babysitter was changing the younger brother's diaper, K.B. spontaneously pointed to the brother's penis and said her father "had one just like that but it was bigger and he hurts me with it." The babysitter asked K.B. where her father had hurt her, and the child pointed to her vaginal area and said that it happened in the tub and in the car when she was naughty. The babysitter reported this incident to the babysitter's mother, who then questioned K.B. and received similar responses from the child.
The babysitter's mother took K.B. to the local police station where the child was interviewed by a police detective experienced in the investigation of sexual assaults on children. The detective reviewed with the child the body parts of male and female anatomical dolls. The male doll had a penis and the female doll had breasts and a vagina. The child referred to the penis of the male doll as "boney." When K.B. identified the penis of the male doll during the course of the interview, she made a statement to the effect that her father "had one too" but that "his was bigger" and that "she was hurt down there," pointing to her vaginal area. When the detective asked K.B. how her father had hurt her, K.B. demonstrated with the dolls by placing the male doll on top of the female doll and putting the penis of the male doll on the vaginal area of the female doll. K.B. also stated that the defendant "peed" on her, and then, gesturing by pointing to her mouth, stated, "Dwight [the defendant] put his boney." K.B. told the detective that these events occurred at the defendant's house. The next day, K.B. was taken to a county health department office, where she was examined by a pediatric nurse. The nurse found no soreness or irritation in the vaginal area.
The evidence at trial established that during the period between March 14 and April 16, 1985, the time frame in which the offenses allegedly were committed, K.B.'s mother was under treatment at the state hospital for a mental illness and the child was in the custody of the defendant.
Subsequently, a foster care program coordinator for the county department of social services drove K.B. and her younger brother to a foster care home. During the offer of proof, the prosecuting attorney did not describe in detail the contents of the foster care program coordinator's testimony, but rather referred to the contents of the coordinator's statement that previously had been disclosed to defense counsel. According to the coordinator's statement, as they drove to the foster home, K.B. spontaneously said, "I don't like boneys." When the coordinator asked K.B., "What are boneys?", K.B. responded: "You know, I don't like boneys. I don't like Daddy to put his boney on me. Daddy puts his boney on me."
During the next year K.B. went to regular weekly therapy sessions with a family therapist or counselor, who had a Master's Degree in Social Work and counseled persons on a variety of family problems, at a county mental health center. As in the case of the coordinator's testimony, the prosecuting attorney, during the offer of proof, referred to the contents of the counselor's statement that previously had been disclosed to defense counsel. The counselor used a play therapy room in which anatomical dolls depicting male and female sexual organs were available to K.B. After about a month of counseling, K.B. said to the counselor that "Daddy hurt me down there" and pointed to her vagina. The counselor and K.B. undressed the anatomical dolls, and the counselor asked K.B. to describe what happened by using the dolls. K.B. put the male and female dolls together and said it hurt and made her cry, and that she wanted to throw her father in the snow for being naughty. The counseling sessions continued for a year and, according to the counselor, K.B. mentioned the sexual assault approximately fifteen times during this period. At one of the counseling sessions K.B. gestured by putting her finger in her mouth in order to indicate that the defendant had put his penis in her mouth during one of the incidents.
After considering the prosecution's offer of proof and the arguments of counsel, the trial court overruled the defendant's objection to the child's statements and ruled them admissible under CRE 803(24) and CRE 804(b)(5). The court also ruled that the child's statements satisfied the admissibility standards of section 13-25-129 because, as stated by the court, "the time, content, and circumstances of the statements provided sufficient safeguards of reliability" and there was corroborative evidence of the act which the child described by reason of the child's use of anatomical dolls and gestures describing the sexual offense to the other persons.
The prosecution's evidence at trial consisted essentially of the evidence summarized in its offer of proof. The defendant testified on his own behalf and denied that he ever sexually assaulted K.B. The jury found the defendant guilty of both charges, and the court imposed concurrent terms of four years on each count.
On appeal, the court of appeals reversed the conviction and remanded for a new trial. In the court of appeals' view, the trial court erred in several particulars: first, in determining that the child's hearsay statements satisfied the circumstantial guarantees of trustworthiness required by CRE 803(24) and CRE 804(b)(5); second, in failing to specify the reason for finding that K.B. was not competent to testify as a witness; third, by failing to identify the specific factors which rendered the child's statement reliable for purposes of section 13-25-129(1)(a); and fourth, by ruling that the child's use of anatomical dolls and gestures satisfied the requirement of section 13-25-129(1)(b)(II) that there be "corroborative evidence of the act which is the subject of the statement." We granted the People's petition to review the propriety of the court of appeals' resolution of this case.
II.
Prior to addressing the admissibility of the child's statements, we address two preliminary issues which are closely tied to the principal questions before us. Both of these matters relate to the meaning and scope of section 13-25-129, which states, in pertinent part, as follows:
"(1) An out-of-court statement made by a child, as child is defined under the statutes which are the subject of the action, describing any act of sexual contact, intrusion, or penetration, as defined in section 18-3-401, C.R.S., performed with, by, on, or in the presence of the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in any criminal . . . proceeding in which a child is a victim of an unlawful sexual offense, as defined in section 18-3-411(1), C.R.S. . . . if:
"(a) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
"(b) The child either:
"(I) Testifies at the proceedings; or
"(II) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
"(2) If a statement is admitted pursuant to this section, the court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
"(3) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement."
The first question pertains to the effect of section 13-25-129 on the residual hearsay exceptions created by CRE 803(24) and CRE 804(b)(5). The second question is whether an appellate court, in reviewing a trial court's evidentiary ruling pursuant to section 13-25-129, should limit itself to the offer of proof made by the proponent of the child's statements and the trial court's ruling thereon or, instead, may consider the entire trial record in support of the trial court's ruling.
A.
We consider first the effect of section 13-25-129 on CRE 803(24) and CRE 804(b)(5). CRE 803(24) creates a residual hearsay exception for a statement made by a declarant, even though the declarant is available as a witness, when the statement has "circumstantial guarantees of trustworthiness" equivalent to other hearsay exceptions created by the Colorado Rules of Evidence, and when the trial court finds that:
"(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence."
CRE 804(b)(5) creates a similar residual hearsay exception when the declarant is unavailable, when the statement has "circumstantial guarantees of trustworthiness," and when the trial court makes the identical findings applicable to CRE 803(24).
The statutory hearsay exception created by section 13-25-129 applies only when the child's statement is "not otherwise admissible by a statute or a court rule which provides an exception to the objection of hearsay." We recently discussed the purpose and scope of this statutory hearsay exception in People v. Diefenderfer, 784 P.2d 741, 746-53 (Colo. 1989). We noted that the statute attempts to effectuate the dual goals of protecting child-victims of sexual offenses by creating a special hearsay exception for the child's out-of-court statements regarding a sexual offense and of safeguarding the right of an accused, in a manner consistent with the United States and Colorado Constitutions, to confront the witnesses testifying against him. See generally Graham, Indicia of Reliability and Face to Face Confrontation: Emerging Issues in Child Sexual Abuse Prosecutions, 40 U. Miami L. Rev. 19, 58-61 (1985); Comment, Confrontation of Child Victim-Witnesses: Trauma, Unavailability, and Colorado's Hearsay Exceptions for Statements Describing Sexual Abuse, 60 U. Colo. L. Rev. 659 (1989). It was in light of these dual purposes that we held that section 13-25-129, rather than the residual hearsay exception of CRE 803(24), provides "the sole basis upon which hearsay evidence, which otherwise comes within the terms of that statute, may be admitted." Diefenderfer, 784 P.2d at 752. The reasoning of Diefenderfer applies equally to the residual hearsay exception created by CRE 804(b)(5) for an out-of-court statement by an unavailable declarant. We conclude, therefore, that section 13-25-129 constitutes the exclusive basis for admitting a child-victim's hearsay statement of a sexual act committed against the child when such hearsay statement is not otherwise admissible under any other specific hearsay exception created by statute or court rule.
If, of course, the child-victim's statement qualifies for admission under a specific hearsay exception — for example, an excited utterance, CRE 803(2), a statement of a then existing mental, emotional, or physical condition, CRE 803(3), or a statement for purposes of medical diagnosis or treatment, CRE 803(4) — the requirements of section 13-25-129 should never come into play. In the instant case, however, the prosecution's offer of proof was directed solely to the residual hearsay exceptions of CRE 803(24) and CRE 804(b)(5) and the statutory exception created by section 13-25-129.
B.
The next question is whether an appellate court, in reviewing a trial court's evidentiary ruling under section 13-25-129, should be limited to the proponent's offer of proof made at the hearing outside the presence of the jury and the trial court's ruling thereon or, instead, may consider the entire evidence admitted during the trial in support of the evidentiary ruling. The purpose of the statutory requirement that a court conduct a hearing outside the presence of the jury before ruling on the admissibility of a child-victim's statement is to permit the proponent of the statement to establish, by offer of proof, that, as stated in subsection 13-25-129(1)(a), "the time, content, and circumstances of the statement provide sufficient safeguards of reliability" and, as stated in subsection 13-25-129(1)(b)(II), in the case of an unavailable child victim that "there is corroborative evidence of the act which is the subject of the statement." The trial court may permit the offer of proof to be presented in the form of a summary of particular testimony or may require the proponent of the evidence to make the offer in question and answer form. CRE 103(b).
Under the Colorado Rules of Evidence, when an objection is made to evidence on relevancy grounds and the relevancy of the evidence depends upon the fulfillment of a condition of fact, the trial court can admit the evidence upon or subject to "the introduction of evidence sufficient to support a finding of the fulfillment of the condition." CRE 104(b). In contrast to the conditional admissibility sanctioned by the Colorado Rules of Evidence, the plain terms of section 13-25-129(1)(a) require the trial court to make findings on whether the statutory conditions of admissibility have been established before the statement is admitted into evidence.
In prior decisions we have addressed the standard of proof applicable to preliminary questions of admissibility where, as here, the responsibility for determining such questions is reposed exclusively in the trial court. We have held that the standard of proof applicable to these evidentiary questions is the preponderance of evidence standard. People v. Romero, 745 P.2d 1003, 1016 (Colo. 1987) (preponderance of evidence standard applicable to trial court's determination of whether posthypnotic testimony of witness sufficiently reliable to be admissible); People v. Montoya, 753 P.2d 729, 733 (Colo. 1988) (preponderance of evidence standard applicable for trial court's resolution of preliminary questions of admissibility for co-conspirator's statement under CRE 801(d)(2)(E)). The fact that section 13-25-129 requires the trial court to make findings on the evidentiary conditions of admissibility provides substantial reason for applying that standard to child victim's hearsay statement offered under the statute. The preponderance of evidence standard, therefore, applies to a trial court's ruling on whether the statutory conditions for admitting a child's hearsay statement under section 13-25-129 have been satisfied.
The text of section 13-25-129 also contemplates that the trial court's ruling, which obviously will affect the trial preparation of the party adversely affected by the ruling, will be based solely on those matters presented to the court at the in-limine hearing. Indeed, if this were not the legislative intent, the in-limine hearing would serve no purpose at all and there would be no reason for mandating it by statute. In order to enhance effective appellate review of the trial court's evidentiary ruling, therefore, the trial court should state on the record its findings with respect to the following conditions of admissibility: first, the specific factors, if any, relating to the "time, content, and circumstances" of each statement that "provide sufficient safeguards of reliability" pursuant to subsection (1)(a) of the statute; second, if the court determines that the child-victim is unavailable as a witness, the specific factors rendering the child unavailable; and third, if the child's statement is ruled admissible, the nature of the "corroborative evidence of the act which is the subject of the statement" in keeping with subsection (1)(b)(II). We intend these requirements to apply to cases tried subsequent to the effective date of this opinion.
In light of our interpretation of the statutory scheme as imposing the obligation on the trial court to determine the admissibility of the child's statement on the basis of matters presented to the court during the in-limine hearing, it follows that any appellate review of the trial court's ruling should be based on the record made at the in-limine hearing. We emphasize that the standard of review we herein adopt is calculated to enhance an appellate court's ability to resolve evidentiary issues arising under section 13-25-129, and is not intended to abrogate the long-standing rules of harmless error or plain error. An appellate review of the correctness of the trial court's ruling, therefore, may go beyond the record of the in- limine hearing only if an issue of harmless error or plain error is raised. Under harmless error analysis, a trial court's erroneous evidentiary ruling that does not affect a substantial right of a party is to be disregarded. CAR 35(e); CRE 103(a). Thus, when a party makes a contemporaneous objection to a child's statement offered under section 13-25-129, and the trial court erroneously admits or excludes the statement, the trial court's evidentiary ruling will be deemed harmless only if a reviewing court can say with fair assurance that, in light of the entire record at trial, the error did not substantially influence the verdict or impair the fairness of the trial. See King v. People, 785 P.2d 596, 605 (Colo. 1990); People v. Gaffney, 769 P.2d 1081, 1089 (Colo. 1989). If, of course, a party fails to make a contemporaneous objection to the evidentiary ruling, then the plain error standard of review is applicable. Plain error is limited to those circumstances in which "an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Wilson v. People, 743 P.2d 415, 420 (Colo. 1987).
With these preliminary matters aside, we turn to the main question before us — that is, whether the trial court erred in admitting K.B.'s statements into evidence under section 13-25-129. The court of appeals held that the trial court erred in the following three respects: first, in failing to specify the reason for finding that K.B. was not competent; second, in failing to identify the specific factors on which it based its finding that K.B.'s statements were reliable; and third, by ruling that K.B.'s use of anatomical dolls and gestures in describing the sexual acts committed against her constituted corroborative evidence of the act described in the child's statement. We shall address each aspect of the evidentiary issue separately.
The court of appeals also held that the trial court erred in failing to make fact-specific findings with respect to the "circumstantial guarantees of trustworthiness" required by CRE 803(24) and CRE 804(b)(5). However, our holding in Part IIA, supra, that section 13-25-129 constitutes the exclusive basis for admitting a child victim's hearsay statement of a sexual act committed against the child when, as here, such statement is not otherwise admissible under any other hearsay exception created by statute or court rule, renders it unnecessary for us to address this aspect of the court of appeals' opinion.
III.
We direct our attention to the question of K.B.'s incompetency. In a criminal prosecution for a sexual offense, a child under ten years of age is considered competent to testify as a witness as long as 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), 6A C.R.S. (1987 Supp. 1990); see People v. District Court, 791 P.2d 682 (Colo. 1990). This statutory requirement, of course, assumes that the child was physiologically capable of apprehending or perceiving the facts or events about which the child is to be examined. In holding that the trial court erred in failing to identify the specific reason for K.B.'s incompetence, the court of appeals remarked that "[i]f [K.B.'s] incompetency rested upon her inability, at the time of the alleged act, to receive just impressions of fact, her statements may be inherently unreliable for any purpose," but, on the other hand, "if [K.B.'s] incompetence was caused only by her fear or inhibition in the courtroom setting, her out-of-court statements nevertheless may have been inherently trustworthy." Bowers, 773 P.2d at 1096. We agree with these observations. A finding, for example, that a very young child is incompetent to testify because of the child's reluctance to answer questions in a formal courtroom environment does not necessarily impair any particularized guarantees of reliability that otherwise inhere in a child's hearsay statement. See Oldsen v. People, 732 P.2d 1132, 1135 n. 6 (Colo. 1986) (finding of incompetence to testify does not automatically render a child's hearsay statements inadmissible, as long as its reliability is ensured by circumstances bringing it within a hearsay exception); Lancaster v. People, 200 Colo. 448, 453-54, 615 P.2d 720, 723-24 (1980) (testimonial incapacity of very young child did not affect applicability of res gestae exception to child's hearsay statement). We further agree with the court of appeals that, in keeping with section 13-25-129, the trial court should have specified the reason why it found K.B. not competent to testify. We are satisfied, however, that the record of the in-limine hearing shows that the trial court's determination that K.B. was not competent, and hence was unavailable as a witness, was based on K.B.'s reluctance to communicate in the formal courtroom setting in which the child was placed.
We note in passing that in Idaho v. Wright, 110 S.Ct. 3139 (1990), the United States Supreme Court addressed the problem of a child-witness's ability to communicate to the jury at the time of trial and in the context of the confrontation rights of the accused. The Court noted that "[a]lthough [the child's] inability might be relevant to whether the earlier hearsay statement possessed particularized guarantees of trustworthiness, a per se rule of exclusion would not only frustrate the truth-seeking purpose of the Confrontation Clause, but would also hinder States in their own `enlightened development in the law of evidence.'" 110 S.Ct. at 3151-52. The issues raised in the instant case, of course, are evidentiary in nature and do not directly involve constitutional confrontation under either the federal or state constitution.
At the in-limine hearing, the prosecuting attorney asked K.B. very basic questions concerning her name, age, and whether she could identify her parents. K.B. did not respond initially to the questions, but then nodded affirmatively or negatively when the questions were asked again. After K.B.'s brief appearance on the witness stand, the prosecuting attorney asserted to the court that the child was "in an environment which is foreign to her" and thus was unable to answer questions. Defense counsel acquiesced in the prosecuting attorney's assessment of the witness, as did the trial court. Although the trial court should have been more specific in identifying on the record the specific basis for its finding of incompetency, the record contains no suggestion whatever that the court found K.B. incompetent due to an inability to receive just impressions of fact. On the contrary, what the record strongly suggests is that K.B.'s reluctance to orally respond to questions was due to the child's nervousness or fright occasioned by the formal courtroom environment. Moreover, the trial court had the opportunity to view the demeanor of K.B., see e.g., Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971) (competence of child-witness is question addressed to sound discretion of trial court), and we have no reason to believe that the trial court would have proceeded to consider and uphold the reliability of child's hearsay statements if the court had any lingering doubt about the child's capacity to apprehend or perceive. We thus conclude that, while the trial court should have been more precise in its ruling on K.B.'s competency, nothing of record suggests that the child was incompetent by reason of some inherent incapacity to receive just impressions of facts or events.
IV.
We next consider whether the trial court erred in failing to identify the specific factors on which it based its finding that K.B.'s statements were reliable. The trial court, in conclusory fashion, ruled that "the time, content, and circumstances of [K.B.'s] statements as described by [the prosecuting attorney] provide sufficient guarantees of reliability." The court of appeals invalidated the trial court's ruling because, in its view, "the findings and the offer of proof are insufficient to meet the statutorily mandated safeguards of reliability for each statement." Bowers, 773 P.2d at 1097. In taking issue with the court of appeals' analysis, the People argue that the offer of proof adequately supports the trial court's ruling on the reliability of the child's statements. Although we agree with the court of appeals that the trial court did not adequately identify the specific factors relating to "time, content, and circumstances" that provided sufficient guarantees of reliability for each of K.B.'s statements, we nonetheless conclude that the prosecuting attorney's offer of proof was sufficiently specific to cure the deficiency in the trial court's ruling on reliability.
In People v. District Court, 776 P.2d 1083, 1089-90 (Colo. 1989), we stated that the following factors, while not intended as "an immutable set of standards for the trial court in determining that the rather amorphous standard of `sufficient indicia of reliability' has been met," nonetheless provide some guidance and direction on the question of reliability:
"(1) Whether the statement was made spontaneously;
"(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;
"(3) whether the language of the statement was likely to have been used by a child the age of the declarant;
"(4) whether the allegation was made in response to a leading question;
"(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
"(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;
"(7) whether more than one person heard the statement; and
"(8) the general character of the child."
In Idaho v. Wright, 110 S.Ct. 3139, 3150 (1990), the United States Supreme Court offered the following list of factors, expressly intended as nonexclusive, for determining whether a child's hearsay statement contained particularized guarantees of trustworthiness: the spontaneity and consistent repetition of the statement; the mental state of the child-declarant; the child's use of terminology unexpected of a child of similar age; and the child's lack of motive to fabricate. In addition to emphasizing that these factors are not exclusive of the issue, the Supreme Court also mentioned that courts "have considerable leeway in their consideration of appropriate factors."
The prosecuting attorney's offer of proof showed that two of K.B.'s statements, each of which was most damaging to the defendant, were made spontaneously without prompting or suggesting. The first statement — "my daddy has one just like that but it's bigger and he hurts me with it" — was made to the babysitter on April 16, 1985, while K.B. watched the babysitter change the diapers on K.B.'s younger brother. Within the next few days, K.B. also made a spontaneous statement to the foster care program coordinator. The prosecuting attorney informed the trial court, during the offer of proof, that the coordinator's written statement describing K.B.'s statement had been disclosed to defense counsel prior to the in-limine hearing. According to the offer of proof, when the coordinator drove K.B. and her younger brother to a foster care home, K.B. spontaneously said, "I don't like boneys." When the coordinator asked K.B., "What are boneys?," K.B. stated, "I don't like Daddy to put his boney on me."
The offer of proof further showed that, although on one occasion K.B.'s statement was made in response to questioning by a police officer and several others were made in response to questions by the family therapist or counselor, K.B. used what can be considered age-appropriate terminology for her very young years. In some circumstances the sexual terminology employed by a young child in describing a sexual offense can lend some measure of reliability to the child's statement. K.B. also, at times, used anatomical dolls in describing the sexual acts committed against her. We also note that the counselor's written report, along with other discovery materials, were made available to defense counsel sometime prior to the in-limine hearing, and that defense counsel did not contest the factual contents of the child's statements described in the offer of proof. Finally, nothing in the prosecution's offer of proof suggested that K.B. had any bias against the defendant or any motive for lying, or that perhaps some other event had occurred that might have accounted for K.B.'s statements.
The use of anatomical dolls as an aid in interviewing a child concerning a sexual assault allegedly committed against the child is not without controversy. One commentator, while acknowledging that the careful use of anatomical dolls seems an appropriate procedure in many cases of reported sexual abuse, has observed that such a procedure "appears to be an ad hoc variant of play therapy" with "little or no critical attention or testing for possible suggestive effects." Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wn. L. Rev. 705, 711 n. 29 (1987). Nothing in the record before us indicates that the dolls were used in a suggestive fashion in the course of the interviews.
In light of the prosecution's offer of proof, the factual contents of which were not controverted during the in-limine hearing, we are satisfied that, although the trial court should have identified the specific factors relating to "time, content, and circumstances" that provided sufficient guarantees of reliability for each of K.B.'s statements disclosed in the offer of proof, there nonetheless was an adequate factual basis in the offer of proof to support the trial court's determination that K.B.'s statements satisfied the reliability requirement of subsection 13-25-129(1)(a).
V.
Reliability is not the only condition of admissibility required by section 13-25-129. The statute also requires that there be corroborative evidence of the act described by the child in the hearsay statement. In reversing the judgment of conviction and remanding the case for a new trial, the court of appeals held that the trial court erred in ruling that K.B.'s use of anatomical dolls and her gestures during interviews with the police officer and the family therapist or counselor satisfied the corroborative-evidence requirement of the statute. In reaching this conclusion, the court of appeals reasoned that K.B.'s use of the dolls and her gestures constituted "nonverbal conduct intended to be communicative," see CRE 801(a), and thus were inadmissible hearsay in the absence of corroborative evidence. Bowers, 773 P.2d at 1097. In challenging this part of the court of appeals' decision, the People raise two alternative arguments. The People first argue that the child's use of the dolls and the child's gestures during interviews with the police officer and the counselor were not hearsay and hence satisfied the corroborative-evidence requirement of the statute. The People alternatively contend that, even if considered hearsay, the trial court nonetheless properly considered such hearsay as corroborative evidence of the act described in the child's statement, since under CRE 104(a) and CRE 1101(d)(1) a trial court is not bound by the formal rules of evidence in determining a preliminary question concerning the admissibility of evidence. An analysis of the text and purpose of section 13-25-129 convinces us that the court of appeals properly resolved this issue.
A.
Section 13-25-129(1)(b)(II) expressly provides that where, as here, the child-victim of a sexual assault is unavailable as a witness, the trial court must find, in a hearing conducted outside the presence of the jury, that "there is corroborative evidence of the act which is the subject of the [child's] statement." The "corroborative evidence" requirement is thus directed at the sexual act described in the child's statement and not at the identity of the perpetrator. Although the statute does not define corroborative evidence, we recently considered the general sense of that term in Stevens v. People, No. 89SC105 (Colo. July 16, 1990). In Stevens a majority of this court, in separate opinions, acknowledged that the term "corroborative evidence" means evidence, whether direct or circumstantial, that tends to establish the fact sought to be proved — namely, the sexual offense described in the child's statement — and that the quantum of corroborative evidence needed to support the admission of a child's hearsay statement "must be enough to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the sexual abuse that is the subject of the child's hearsay statement occurred." Slip op. by Vollack, J., at 11-16 (joined by Rovira, C. J., and Mullarkey, J.); see also slip op. by Lohr, J., (special concurring opinion, joined by Quinn, J.). In Stevens, however, we did not attempt to determine the precise scope of the corroborative-evidence requirement, nor did we delineate the various forms of corroborative evidence that might satisfy the statutory requirement. We did not address these matters because the record demonstrated that there indeed was corroborative evidence in the form of expert testimony establishing that the two child-victims of the sexual crimes had undergone significant behavioral changes subsequent to the offenses and that such changes were consistent with post-traumatic stress resulting from a sexual assault. Because of the existence of this corroborative evidence, it was unnecessary for us to consider whether a child's use of anatomical dolls, and, as here, any incidental gesturing by the child in describing a sexual assault, "may supply corroboration of a child's hearsay statement pursuant to § 13-25-129(1)(b)(II)." Slip op. by Vollack, J., at 20 n. 8. It is that question, unanswered in Stevens, that is directly before us in this case.
B.
We will not delay long over the People's claim that the child's use of anatomical dolls and the child's gesturing in describing sexual acts during interviews by the detective and the counselor did not constitute hearsay evidence. Hearsay is defined in CRE 801(c) as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement" includes not only an oral or written assertion but also "nonverbal conduct of a person, if it is intended by [the person] to be communicative." CRE 801(a).
The prosecuting attorney's offer of proof leaves no doubt that K.B.'s use of anatomical dolls during the interviews by the detective and the counselor, as well as the child's gesturing during these interviews, constituted a form of nonverbal conduct that was intended by the child to be communicative. K.B. first made use of the dolls while she was interviewed by the detective on the evening of April 16, 1985. In response to the detective's question about how the defendant hurt her, K.B. placed the male doll on top of the female doll and placed the penis of the doll on the vaginal area, stating that the defendant "had one too" but that "his was bigger" and that she had been hurt "down there," pointing to her vaginal area. K.B.'s second use of the dolls occurred during several interviews with the family therapist or counselor at the county mental health center. Again, in response to the counselor's request for a description of what happened to her, K.B. put the male and female dolls together and said that the defendant "put his boney right here," pointing again to her vaginal area. The prosecuting attorney's offer of proof clearly demonstrates that K.B.'s use of the dolls and her gesturing were in response to questions by the police officer and the counselor concerning the alleged sexual assault, and that the child's use of the dolls and gesturing were intended to be no less communicative than the child's verbal responses. The child's use of the dolls and the child's gesturing during the interviews, therefore, clearly satisfied the definition of hearsay.
C.
We next consider the People's argument that, notwithstanding the hearsay character of the evidence, the child's use of the anatomical dolls and the child's gesturing during the interviews satisfied the corroborative-evidence requirement of subsection 13-25-129(1)(b)(II). We acknowledge, as contended by the People, that the Colorado Rules of Evidence state that a trial court is not bound by the rules of evidence, except with respect to privileges, in determining preliminary questions concerning the admissibility of evidence. See CRE 104(a); CRE 1101(d)(1). Where, however, the General Assembly has enacted a statutory scheme that creates a special rule of evidence for a particular category of cases and the evidentiary rule is not otherwise included in the Colorado Rules of Evidence, and where the statutory scheme includes a procedural protocol for determining the admissibility of evidence offered under the statute, the Colorado Rules of Evidence clearly contemplate that questions relating to admissibility of evidence offered under any such statute should be determined in accordance with the statutory scheme. See CRE 1101(e) (Rules of Evidence apply in special statutory proceeding only to extent "that matters of evidence are not provided for in the statutes which govern procedure therein.") (emphasis added). Section 13-25-129(1) not only states that the hearsay exception therein created applies only when the child's out-of-court statement is "not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay," but also requires an in-limine admissibility hearing and sets forth explicit conditions of admissibility with respect to any statement offered under the statute. We, therefore, must look to section 13-25-129, rather than the Colorado Rules of Evidence, for the controlling evidentiary standards of admissibility.
Subsection 13-25-129(1)(b)(II) requires that there be "corroborative evidence of the act which is the subject of the [child's] statement." The critical issue in this case centers on the meaning of the term "corroborative evidence" as used in the statute. "It is a cardinal rule of statutory construction that words are to be construed according to their `common usage' and that a term which has acquired a technical or particular meaning, whether by legislative definition or otherwise, should be construed according to its acquired meaning." Binkley v. People, 716 P.2d 1111, 1113 (Colo. 1986); see section 2-4-101, 1B C.R.S. (1980). Since the General Assembly did not define the term "corroborative evidence" in section 13-25-129, we first look to its commonly accepted meaning and then consider whether it has acquired a technical or particular meaning.
To "corroborate" means "to make strong or strengthen," "to provide evidence of the truth of," or to "make more certain," and the word "corroborative" means "serving or tending to corroborate." Webster's Third International Dictionary 512 (1986). In the context of evidence, corroborative or corroborating evidence means evidence "supplementary to that already given and tending to strengthen or confirm it" or, stated somewhat differently, "[a]dditional evidence of a different character to the same point." Black's Law Dictionary 311 (5th ed. 1979). The term "corroborative evidence," in its commonly accepted meaning, therefore, connotes evidence independent of and supplementary to a fact and tending to strengthen or confirm that fact.
The term "corroborative evidence" has also been used in a technical sense in varied contexts, but the technical sense of the term is not substantially different from the commonly accepted meaning. In People v. Martinez, 187 Colo. 413, 416, 531 P.2d 964, 965 (1975), for example, we held that the rule requiring corroboration of an accomplice's testimony may be satisfied by evidence, direct or circumstantial, which establishes the defendant's participation in the commission of the crime and may be "from outside sources, or may be in the form of one accomplice corroborating another." In similar fashion, we held in Neighbors v. People, 168 Colo. 319, 322, 451 P.2d 264, 265 (1969), that the rule requiring the corroboration of an accused's confession is satisfied by "other and independent evidence," which "need only be slight" but must be sufficient "to convince the jury that the crime is real and not imaginary."
We must presume that the General Assembly "has knowledge of the legal import of the words it uses" in a statutory enactment. People v. Guenther, 740 P.2d 971, 976 (Colo. 1987). In the instant case, however, we need not rest our construction of the term "corroborative evidence" solely on this presumption. The committee comments of the legislators directly concerned with the bill that incorporated the "corroborative evidence" requirement into the statutory scheme clearly show that the term was intended to carry the same meaning as the commonly accepted definition of the term and the meaning which this court attributed to the term in our prior decisions. When the bill was before the Senate Judiciary Committee in 1983, one of the committee members voiced a concern that young children can be "very imaginative" and that he did not want "an imagination of a child to be testimony to convict an innocent person." In response to this comment, the bill's sponsor, Senator Soash, referred to the "corroborative evidence" requirement for an unavailable child-witness and stated:
"So by having that requirement . . . , there being some other corroborative evidence that the event took place, that would solve the problem that you are concerned with of someone just making it up and saying it, because that alone won't be enough. They either had to be present or there would have to be some other evidence besides just that [child's] statement."
Tape Recording of Senate Judiciary Committee Hearing on Senate Bill 11, 54th General Assembly, First Session, January 1983. This legislative colloquy clearly indicates that the bill's sponsor was of the view that the term "corroborative evidence" was intended to mean evidence independent of and supplementary to that which is corroborated.
We are not here concerned with the constitutional necessity of the corroborative-evidence requirement. Nor are we concerned with the wisdom of such requirements, although the rationale for such a rule is readily discernible:
"It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. In the context of child abuse, for example, if part of the child's hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the child's statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true. Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the child's statements is substantially undermined."
Idaho v. Wright, 110 S.Ct. 3139, 3153-54 (1990) (Kennedy, J., dissenting). Our responsibility in this case is to construe and apply the statute in a manner consistent with the statutory text, for in the last analysis it is the statutory text that is most reflective of legislative intent, and it is legislative intent that is the polestar of statutory construction. E.g., Guenther, 740 P.2d at 975; People v. District Court, 711 P.2d 666, 671 (Colo. 1985); People v. Lee, 180 Colo. 376, 381, 506 P.2d 136, 139 (1973).
We are convinced that the term "corroborative evidence" in section 13-25-129(1)(b)(II) was intended to mean what the term clearly denotes — that is, evidence, direct or circumstantial, that is independent of and supplementary to the child's hearsay statement and that tends to confirm that the act described in the child's statement actually occurred. By way of example, and not of limitation, corroborative evidence may include any of the following: testimony from an eyewitness, other than the unavailable child-victim, whose statement is offered into evidence, that the offense occurred; statements of other children who were present when the act was committed against the victim; medical or scientific evidence indicating that the child was sexually assaulted; expert opinion evidence that the child-victim experienced post-traumatic stress consistent with the perpetration of the offense described by the child; evidence of other similar offenses committed by the defendant; the defendant's confession to the crime; or other independent evidence, including competent and relevant expert opinion testimony, tending to establish the commission of the act described in the child's statement.
The consequences of adopting the alternative construction proposed by the People are obvious. Construing subsection 13-25-129(1)(b)(II) so as to permit a child's verbal or nonverbal assertions made during the course of a statement to be used as corroborative evidence of the act described in the statement would render the child's statement self-corroborating and would thereby deprive the term "corroborative evidence" of any meaningful content. In effect, the proponent of the child's statement would be permitted to bootstrap on the assertive content of the statement in order to "corroborate" the act which is the subject of the child's statement. If the General Assembly had intended such a construction, it would have sanctioned the admissibility of the child's statement solely on the basis of the trial court's determination that the "time, content and circumstances of the statement provide sufficient guarantees of reliability," without regard to the existence of corroborative evidence.
The problem of evidentiary bootstrapping arises in a variety of situations. In Idaho v. Wright, 110 S.Ct. 3139, 3150-51 (1990), the United States Supreme Court addressed the problem in considering whether corroborating evidence could appropriately be considered in determining whether an unavailable child-victim's hearsay statement satisfied the "particularized guarantees of trustworthiness" for purposes of the Confrontation Clause. In holding that it could not, the Court stated: "In short, the use of corroborating evidence to support a hearsay statement's `particularized guarantees of trustworthiness' would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. Indeed, although a plurality of the Court in Dutton v. Evans [ 400 U.S. 74 (1970)] looked to corroborating evidence as one of four factors in determining whether a particular hearsay statement possessed sufficient indicia of reliability, see 400 U.S., at 88, 91 S.Ct., at 219, we think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy. See id., at 90, 91 S.Ct., at 220 (Blackmun, J., joined by Burger, C.J., concurring) (finding admission of the statement at issue to be harmless error, if error at all); see also 4 D. Louisell C. Mueller, Federal Evidence § 418, p. 143 (1980) (discussing Evans) (footnote omitted)." We, of course, are dealing here with a problem of statutory construction and not constitutional confrontation. The "bootstrapping" problem has also arisen in the context of the co-conspirator hearsay exception. In 1988, for example, we considered this hearsay exception in People v. Montoya, 753 P.2d 729 (Colo. 1988). Prior to our decision in Montoya, the United States Supreme Court addressed the co-conspirator hearsay exception in Bourjaily v. United States, 483 U.S. 171 (1987). The Court in Bourjaily construed Federal Rule of Evidence 801(d)(2)(E), which provides that a statement is not hearsay if the statement is offered against the party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The Court held that, in determining the preliminary questions of admissibility relating to whether there was a conspiracy involving the defendant and the declarant and whether the declarant made the statement in furtherance of the conspiracy, a trial court may consider the alleged co-conspirator's statement itself. It is important to note that Federal Rule of Evidence 801(d)(2)(E) does not contain any express requirement of "corroborative evidence," as does section 13-25-129(1)(b)(II). Moreover, the Supreme Court in Bourjaily expressly left open whether a court could rely solely on the co-conspirator's statements to determine the preliminary questions of admissibility. 483 U.S. at 181. In Montoya, we construed Colorado Rule of Evidence 801(d)(2)(E), which is identical to the Federal Rule, and resolved what Bourjaily had not. We concluded that, although a trial court may consider the co-conspirator's statement in determining the preliminary questions of admissibility, "there must also be some evidence, independent of the alleged co-conspirator's statement, establishing that the defendant and the declarant were members of the conspiracy" before the co-conspirator's statement is admissible. 753 P.2d at 736. Montoya, therefore, clearly stands for the proposition that before a co-conspirator's statement may be admitted into evidence, there must be some "corroborative evidence," separate and apart from the statement itself, that establishes the evidentiary conditions for admissibility. In contrast to CRE 801(d)(2)(E), which is silent on the requirement of corroborative evidence as a condition precedent to admissibility, the statutory text of section 13-25-129(1)(b)(II) explicitly requires "corroborative evidence of the act which is the subject of the [child's] statement.
To be sure, one might draw any number of inferences from a child's description of a sexual act. The child's statement, for example, might possibly lead one to infer that the child possesses a degree of sexual knowledge unexpected of a child of that chronological age. The fact remains, however, that the plausibility of such an inference derives directly from the assertive content of the child's description of the sexual act. Such inference drawing, reduced to its basic components, is but another form of bootstrapping on the hearsay statement in an effort to satisfy the corroborative evidence requirement of the statute. In effect, the proponent of the statement relies on the truth of the statement to infer a state of mind on the part of the child and then attempts to utilize the child's state of mind to corroborate the truth of the matter described in the statement. The manifest circularity implicit in that mode of analysis is irreconcilable with the statutory requirement that there be corroborative evidence — that is, evidence independent of the child's statement — of the act described in the child's statement.
Some courts have held that the so-called "precocious sexual knowledge" manifested in a child-victim's hearsay statement is nonassertive in nature and thus admissible to corroborate the child's hearsay statement. E.g., State v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990); State v. Jones, 112 Wn.2d 488, 772 P.2d 496 (1989). Although we acknowledge that the sexual terminology exhibited in a child's statement may be a factor to consider in determining whether the child's statement contains "sufficient safeguards of reliability" for purposes of subsection 13-25-129(1)(a), see Part IV, for reasons stated in the text of our opinion we reject the notion that the level of sexual knowledge that might possibly be inferred from the child's statement is evidence independent of the statement itself and corroborative of the act described in the statement.
In light of our determination that the statute does not contemplate the use of the assertive content of the child's statement, whether in the form of a verbal or nonverbal assertion, as corroborative evidence of the act described in the child's statement, we also are convinced that subsection 13-25-129(1)(b)(II) was not intended to sanction the use of one of the child's hearsay statements as corroborative evidence of the act described in another hearsay statement made by the same child. Such reciprocal use of hearsay as corroborative evidence would be but another form of evidentiary bootstrapping.
D.
The trial court in this case ruled that the child's statements to the police detective and the counselor were admissible because they were corroborated by the child's use of the anatomical dolls and the child's gesturing during the course of the statements. Because the child's use of the dolls and gesturing constituted nonverbal assertions and thus were hearsay, those nonverbal assertions did not qualify as corroborative evidence for purposes of subsection 13-25-129(1)(b)(II). In regard to K.B.'s statements to the babysitter, the babysitter's mother, and the foster home coordinator, the prosecuting attorney made no showing during the offer of proof that there was any corroborative evidence of the act described by the child in each of these statements. Rather, the prosecutor relied on K.B.'s other hearsay statements to the detective and the counselor, along with the child's verbal and nonverbal assertive actions and gestures during those statements, to satisfy the corroborative- evidence requirement of the statute. As previously discussed, the corroborative-evidence requirement cannot be satisfied by using one or several of K.B.'s hearsay statements to corroborate the act described in another hearsay statement of the child. Under this state of the record, the trial court erred in admitting K.B.'s statements into evidence, and the court of appeals properly reversed the judgment of conviction and remanded the case for a new trial.
We accordingly affirm the judgment of the court of appeals.
CHIEF JUSTICE ROVIRA dissents, and JUSTICE VOLLACK joins in the dissent.