SUMMARY 

September 9, 2021 

2021COA121

No. 18CA0792, People v. Vanderpauye — Evidence — Hearsay 

— Self-Serving Hearsay — Hearsay Exceptions — Excited 

Utterance — Relevancy — Exclusion of Relevant Evidence on 

Grounds of Prejudice, Confusion, or Waste of Time

A division of the court of appeals holds that neither the 

Colorado Rules of Evidence nor the precedents of the Colorado 

Supreme Court establish a per se rule prohibiting the admission of 

self-serving hearsay by a criminal defendant. Instead, a criminal 

defendant’s self-serving hearsay is admissible, subject to the 

principles contained in CRE 403, if, but only if, the statement 

satisfies a hearsay-rule exception recognized in the Colorado Rules 

of Evidence. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
COLORADO COURT OF APPEALS 2021COA121

Court of Appeals No. 18CA0792 

Boulder County District Court No. 16CR425 

Honorable Bruce Langer, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Jacob Vanderpauye, 

Defendant-Appellant. 

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division VI 

Opinion by JUDGE BERGER 

Richman and Welling, JJ., concur 

Announced September 9, 2021 

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant 
1 

¶ 1 The dispositive question raised in this appeal is whether 

Colorado law contains a rule that prohibits the admission of 

self-serving hearsay statements by a criminal defendant. 

¶ 2 Defendant, Jacob Vanderpauye, appeals his conviction for 

sexual assault (victim physically helpless). During the alleged 

sexual assault, and immediately after the victim accused him of 

rape, Vanderpauye said to the victim: “I thought you said I could do 

anything to you.” The trial court excluded this statement based on 

its belief that Colorado law prohibits the admission of self-serving 

hearsay by criminal defendants, irrespective of whether the hearsay 

meets one or more of the exceptions contained in the Colorado 

Rules of Evidence. The trial court alternatively ruled that the 

statement was neither an excited utterance nor a statement of 

Vanderpauye’s then-existing state of mind. 

¶ 3 We hold that neither the Colorado Rules of Evidence nor the 

precedents of the Colorado Supreme Court establish a per se rule 

prohibiting the admission of self-serving hearsay by a criminal 

defendant. Instead, a criminal defendant’s self-serving hearsay is 

admissible, subject to the principles contained in CRE 403, if, but 
2 

only if, the statement satisfies a hearsay-rule exception recognized 

in the Colorado Rules of Evidence. 

¶ 4 Because Vanderpauye’s statement was admissible under one 

of the established hearsay exceptions contained in the Colorado 

Rules of Evidence, the trial court erred. This error was not 

harmless, so we reverse the conviction and remand the case for a 

new trial. We address some of Vanderpauye’s other claims of error 

because they are likely to recur on retrial. 

I. Background 

¶ 5 Evidence admitted at trial permitted the jury to find the 

following facts. After a night of heavy drinking with friends, the 

victim went home with Vanderpauye, engaged in affectionate 

kissing, and fell asleep on Vanderpauye’s bed. When the victim 

woke up, Vanderpauye was on top of her, having sexual intercourse 

with her. The victim yelled, “[W]hat are you doing? You’re raping 

me.” The parties agree that, in response to this accusation, 

Vanderpauye said, “I thought you said I could do anything to you.” 

The victim pushed Vanderpauye off her, ran out of the apartment, 

and returned home. 
3 

¶ 6 After she returned home, the victim told her friend that she 

had been raped. The victim slept for a few hours, and the next 

morning she told several other friends, her mother, and her aunt 

that she had been raped. Shortly afterward, she was examined by a 

sexual assault nurse examiner and she reported the alleged assault 

to the police. 

¶ 7 The prosecution charged Vanderpauye with three counts: 

 sexual assault (causing submission of the victim) under 

section 18-3-402(1)(a), C.R.S. 2020; 

 sexual assault (incapable of appraising) under 

section 18-3-402(1)(b); and 

 sexual assault (victim physically helpless) under 

section 18-3-402(1)(h). 

¶ 8 The prosecution dismissed the sexual assault (causing 

submission of the victim) charge. The jury was unable to reach a 

verdict on the sexual assault (incapable of appraising) charge, and 

the prosecution dismissed it. The jury convicted Vanderpauye of 

sexual assault (victim physically helpless). The court sentenced 

Vanderpauye to sex offender intensive supervised probation for a 

term of twenty years to life. 
4 

II. The Trial Court Reversibly Erred by Excluding Vanderpauye’s 

Self-Serving Hearsay Statement 

¶ 9 Vanderpauye argues that the trial court reversibly erred by 

refusing to admit his hearsay statement, “I thought you said I could 

do anything to you.” We agree. 

A. Additional Facts 

¶ 10 The victim told the police that, immediately after she woke up 

and realized that Vanderpauye was having sexual intercourse with 

her, she accused him of raping her. She admitted that 

Vanderpauye immediately responded to her accusation by saying, “I 

thought you said I could do anything to you.” 

¶ 11 Vanderpauye moved for an order permitting the jury to hear 

his statement. He argued that his statement was admissible 

because, although it was hearsay, it met two exceptions to the 

hearsay rule — the excited utterance exception in CRE 803(2) and 

the then-existing state of mind exception in CRE 803(3). 

Vanderpauye further argued that the second layer of his hearsay 

statement — the victim’s alleged statement “[you can] do anything 

to [me],” upon which his denial rested — was not being offered for 

the truth of the matter asserted. Instead, he argued that it was 
5 

admissible for the nonhearsay purpose of its effect on the listener to 

show his belief that the victim consented to sexual intercourse. 

¶ 12 The trial court first ruled that the statement was inadmissible 

because it was self-serving hearsay: 

[T]he first threshold that I think I have to cross 

is whether or not it’s self-serving hearsay. 

. . . . 

And, obviously the concern is that defendants 

sometimes make things up and paint things in 

a color that’s more beneficial to them. And 

there’s abundant case law that self-serving 

hearsay is not admissible. It strikes me that 

this statement falls squarely within that area 

of concern. 

¶ 13 Alternatively, the trial court ruled that the statement was 

neither an excited utterance nor a statement of Vanderpauye’s 

then-existing state of mind. 

If anything was startling to Mr. Vanderpauye, 

it was [the victim] either waking up and 

stopping him or for some other reason 

stopping him, but what was startling to him, it 

was not that statement. It was some other 

event that happened. 

Similarly, the state of mind that’s relevant to 

this case is not a state of mind at the time that 

he made that statement. It would be his state 

of mind at the time that he engaged in – began, 

I guess, engaging in this alleged sex act. . . . 
6 

So for all of those reasons, I’m going to find 

that the statement is not admissible. 

¶ 14 At trial, the victim testified on direct examination that when 

she woke up, she “immediately said to [Vanderpauye], what are you 

doing? You’re raping me. I was passed out. You’re raping me.” 

She also testified that Vanderpauye “seemed very startled that I 

woke up” and that “[b]ased off his body language, he seemed 

surprised.” After this testimony, Vanderpauye renewed his proffer 

of his hearsay statement. 

¶ 15 The trial court adhered to its prior ruling, stating that 

regardless of whether it’s an excited utterance 

or not, I still find it’s self-serving hearsay. . . . 

[T]he analysis that because it’s self-serving 

hearsay, it’s not inherently reliable, I think 

that that trumps the excited utterance 

exception if it is an excited utterance, but I’m 

not finding it is an excited utterance, so my 

ruling stands. 

B. Preservation and Standard of Review 

¶ 16 The parties agree that Vanderpauye preserved this claim. “We 

review a trial court’s evidentiary rulings for an abuse of discretion.” 

Campbell v. People, 2019 CO 66, ¶ 21. A court abuses its discretion 

when its decision is manifestly arbitrary, unreasonable, or unfair, 

or if it misapplies the law. People v. Baker, 2021 CO 29, ¶ 29. 
7 

C. The Colorado Rules of Evidence Govern the Admissibility of 

Self-Serving Hearsay 

¶ 17 Hearsay is 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.” CRE 801(c). Hearsay is not 

admissible “except as provided by [the Colorado Rules of Evidence] 

or by the civil and criminal procedural rules applicable to the courts 

of Colorado or by any statutes of the State of Colorado.” CRE 802. 

¶ 18 In People v. Cunningham, the Colorado Supreme Court held, in 

the context of an admission against interest, that “[h]earsay 

declarations made by a defendant in his own favor are generally not 

admissible for the defense. ‘A self-serving declaration is excluded 

because there is nothing to guarantee its testimonial 

trustworthiness.’” 194 Colo. 198, 202-03, 570 P.2d 1086, 1089 

(1977) (quoting 2 Charles E. Torcia, Wharton’s Criminal Evidence

§ 303, at 97-98 (13th ed. 1972)). 

¶ 19 In Cunningham, the defendant was charged with murder and 

kidnapping. Id. at 200, 570 P.2d at 1087. He sought to admit his 

hearsay statement that admitted involvement in the kidnapping but 

denied involvement in the murder. Id. at 203, 570 P.2d at 1089. 
8 

The supreme court upheld the trial court’s exclusion of the 

statement, concluding that “its primary purpose, both when made 

and when offered on the defendant’s behalf at trial, was to attempt 

to shift blame to others, and to deny any involvement in the 

murder.” Id.

¶ 20 Based on Cunningham and later court of appeals decisions 

following it, the Attorney General argues that “a defendant’s 

self-serving hearsay declarations should be excluded when there is 

nothing to guarantee trustworthiness.” We reject the Attorney 

General’s position for several reasons. 

¶ 21 First, the Colorado Rules of Evidence, promulgated by the 

supreme court after it decided Cunningham, do not contain any rule 

against the admission of self-serving hearsay by a criminal 

defendant.1 “When the Colorado Supreme Court exercises its 

constitutional authority and adopts a rule of procedure or evidence 

that conflicts with an earlier opinion of that court, the later 

 

1 Cunningham was decided in 1977. The Colorado Rules of 

Evidence became effective on January 1, 1980. See People v. 

Ramirez, 155 P.3d 371, 375 (Colo. 2007). 
9 

precedent or rule controls, not the former.” People v. Gonzales, 

2019 COA 30, ¶ 19, aff’d, 2020 CO 71. 

¶ 22 Second, in a case decided after both Cunningham and the 

effective date of the Colorado Rules of Evidence, the supreme court 

authorized the admission of a self-serving hearsay statement by a 

criminal defendant, without subjecting the statement to the 

purported rule against the admission of self-serving hearsay. King 

v. People, 785 P.2d 596, 600-03 (Colo. 1990). 

¶ 23 In King, the defendant moved to admit hearsay statements 

that he made to his psychiatrist. Id. at 599. The trial court did not 

consider whether the statements were admissible under CRE 803(4) 

as statements for the purposes of diagnosis and treatment, instead 

ruling that the statements were inadmissible because they were 

self-serving. Id. Without addressing the purported rule against the 

admission of self-serving hearsay, the supreme court held that the 

proffered statement met the requirements of CRE 803(4) and was 

therefore admissible. Id. at 603. The court reasoned that the 

hearsay exceptions in CRE 803 were themselves predicated on 

considerations of trustworthiness, so if a hearsay statement met the 
10 

requirements of the exception, it was admissible “without regard to 

any independent demonstration of trustworthiness.” Id. 

¶ 24 This court’s opinion in People v. Pack, 797 P.2d 774, 775-76 

(Colo. App. 1990), is consistent both with King and with our 

analysis here. There, a division of this court held that a criminal 

defendant’s excited utterance was admissible under CRE 803(2) 

notwithstanding that it was a self-serving statement. Pack, 797 

P.2d at 776. It distinguished Cunningham on the basis that the 

defendant there did not argue that his statement was admissible as 

an excited utterance under CRE 803(2).2 Pack, 797 P.2d at 775. 

¶ 25 We acknowledge that supreme court case law explains that the 

self-serving nature of a statement against interest is relevant to the 

admissibility analysis under CRE 804(b)(3).3 See Nicholls v. People, 

 

2 To the extent that other divisions of this court have cited 

Cunningham for the proposition that self-serving hearsay is 

inadmissible even if it fits within an exception recognized by the 

Colorado Rules of Evidence, they have done so without much 

analysis. See, e.g., People v. Abeyta, 728 P.2d 327, 331 (Colo. App. 

1986). More importantly, those cases are inconsistent with the 

most recent supreme court case law, and we decline to follow them. 

We are not bound by the decision of another division of this court. 

Campbell v. People, 2020 CO 49, ¶ 41. 

3 An inculpatory statement by a criminal defendant is not hearsay 

at all under CRE 801(d). 
11 

2017 CO 71, ¶¶ 44-45. But nothing in Nicholls, or other supreme 

court precedent decided after the promulgation of the Colorado 

Rules of Evidence, creates an independent impediment to the 

admission of self-serving hearsay. See King, 785 P.2d at 603. 

¶ 26 A review of case law from other jurisdictions supports our 

analysis. A majority of other state courts have concluded that “no 

general rule of evidence excludes statements merely because they 

are self[-]serving.” State v. Vandenburg, No. M2017-01882-CCA-R3-

CD, 2019 WL 3720892, at *46 (Tenn. Crim. App. Aug. 8, 2019) 

(citation omitted) (appeal denied Jan. 15, 2020); see also Williams v. 

State, 915 P.2d 371, 378-79 (Okla. Crim. App. 1996); Swain v. 

Citizens & S. Bank of Albany, 372 S.E.2d 423, 425 (Ga. 1988) 

(“‘[S]elf-serving’ does not describe an independent ground of 

objection.”) (citation omitted). But see Calloway v. State, 210 So. 3d 

1160, 1183 (Fla. 2017) (holding that self-serving hearsay 

statements are generally inadmissible subject to the rule of 

completeness). 

¶ 27 The United States Court of Appeals for the Seventh Circuit has 

further explained that “a flat rule of exclusion of declarations of a 

party on the grounds that they may be described as ‘self-serving’ 
12 

even though otherwise free from objection under the hearsay rule 

and its exceptions, detracts from the fund of relevant information 

which should be available to the jury.” United States v. Dellinger, 

472 F.2d 340, 381 (7th Cir. 1972). 

¶ 28 Learned treatises also support our analysis. One treatise has 

recognized that “[i]f a statement with a self-serving aspect falls 

within an exception to the hearsay rule, the judgment underlying 

the exception that the assurances of trustworthiness outweigh the 

dangers inherent in hearsay should be taken as controlling, and the 

declaration should be admitted despite its self-serving aspects.” 2 

Kenneth S. Broun et al., McCormick on Evidence § 270, Westlaw 

(8th ed. database updated Jan. 2020). Discussing self-serving 

statements that meet the requirements of Fed. R. Evid. 803(3), 

another treatise explains that concerns about candor alone do not 

justify excluding such statements because “the possibility that 

factfinders will be misled, or fail to appreciate the possibility that 

they are false or exaggerated, seems remote.” 4 Christopher B. 

Mueller & Laird C. Kirkpatrick, Federal Evidence §§ 8:70-8:71, 

Westlaw (4th ed. database updated May 2021). 
13 

¶ 29 For these reasons, we conclude that Colorado law does not 

contain any bar, separate from the provisions of the Colorado Rules 

of Evidence, to the admission of self-serving hearsay statements by 

a criminal defendant. Accordingly, if the proffered statement meets 

an exception to the hearsay rule, it may be admitted, subject to the 

provisions of CRE 403.4 It follows that the trial court erred as a 

matter of law when it relied on this nonexistent evidentiary rule to 

exclude Vanderpauye’s self-serving statement. 

¶ 30 That conclusion, however, does not end our inquiry. The 

question remains whether Vanderpauye’s statement was admissible 

under the Colorado Rules of Evidence. On this record, the answer 

is yes. 

 

4 The substance of the statement, including any self-serving nature, 

could be a proper factor for a trial court to consider in exercising its 

discretion to exclude such a statement under CRE 403. But the 

self-serving nature of the hearsay statement is not sufficient, by 

itself, to justify exclusion. Cf. People v. Melendez, 102 P.3d 315, 

322 (Colo. 2004) (recognizing that the exclusion of cumulative 

evidence that would have “materially assisted” the defendant’s case 

could violate the defendant’s constitutional right to present a 

defense). 
14 

D. Vanderpauye’s Hearsay Statement was Admissible as an 

Excited Utterance Under CRE 803(2) 

¶ 31 An excited utterance is a “statement relating to a startling 

event or condition made while the declarant was under the stress of 

excitement caused by the event or condition.” CRE 803(2). There 

are three requirements for admissibility under this exception: 

(1) the event must be sufficiently startling to 

render normal reflective thought processes of 

the observer inoperative; (2) the statement 

must be a spontaneous reaction to the 

occurrence; and (3) direct or circumstantial 

evidence must exist to allow the jury to infer 

that the declarant had the opportunity to 

observe the startling event. 

People v. Martinez, 83 P.3d 1174, 1177 (Colo. App. 2003). 

¶ 32 Under the first requirement for the admission of an excited 

utterance, the event that triggers the hearsay statement — not the 

statement itself — must be startling. The trial court ruled that 

Vanderpauye’s statement was not an excited utterance because “[i]f 

anything was startling to Mr. Vanderpauye, it was [the victim] either 

waking up and stopping him or for some other reason stopping him, 

but what was startling to him, it was not that statement.” To the 

extent the trial court ruled that Vanderpauye’s statement was not 

an excited utterance because the statement itself was not startling, 
15 

the trial court misapplied the law. A trial court necessarily abuses 

its discretion if its ruling is based on an erroneous view of the law. 

People v. Voth, 2013 CO 61, ¶ 15. 

¶ 33 If, instead, the court was referring to the victim’s statement, 

we reject the court’s conclusion that the victim’s accusation of rape 

was not startling. The Attorney General argues that Vanderpauye’s 

word choice suggests a considered and self-serving planned 

response. However, the victim herself testified that Vanderpauye 

seemed startled and surprised when she woke up and accused him 

of raping her. This established that the event was sufficiently 

startling to render inoperative Vanderpauye’s normal reflective 

thought process for purposes of admission under CRE 803(2). (Of 

course, whether Vanderpauye’s statement was credible or was made 

solely to exculpate himself was exclusively for the jury to determine. 

See People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983).) 

¶ 34 The victim’s own statement to the police that Vanderpauye 

immediately responded to her accusation by saying, “I thought you 

said I could do anything to you” established that the statement was 

a spontaneous reaction to the event. Finally, the undisputed 

evidence established that Vanderpauye observed the startling event 
16 

of the victim waking up and accusing him of rape. Accordingly, the 

record establishes that all requirements for the admission of an 

excited utterance were satisfied.5 The trial court abused its 

discretion by concluding otherwise.6

E. The Victim’s Alleged Statement Contained Within 

Vanderpauye’s Excited Utterance Was Not Hearsay 

¶ 35 The Attorney General argues that Vanderpauye’s statement 

was nonetheless inadmissible because it contained a second layer 

of hearsay — the victim’s alleged statement “[you can] do anything 

to [me].” We reject this argument because the victim’s alleged 

statement was not hearsay. 

¶ 36 Words that carry legal consequences or logical significance 

independent of the assertive content of the words are not hearsay. 

4 Mueller & Kirkpatrick, § 8:18. In a related context, the United 

 

5 Because we conclude that this statement met the requirements for 

admission as an excited utterance under CRE 803(2), it is 

unnecessary for us to analyze whether it also was admissible as a 

statement of Vanderpauye’s then-existing state of mind under CRE 

803(3). 

6 The rule of completeness codified in CRE 106 might provide an 

independent basis for the admission of Vanderpauye’s statement. 

But Vanderpauye did not, either in the trial court or here, make 

that argument. Respecting the party presentation principle, we do 

not further address the rule of completeness. See Galvan v. People, 

2020 CO 82, ¶ 45. 
17 

States Court of Appeals for the Seventh Circuit held that statements 

that a defendant consented to a search of her person or belongings 

were admissible nonhearsay because the statements had legal 

significance independent of the assertive content of the words. 

United States v. Moreno, 233 F.3d 937, 940 (7th Cir. 2000); see also 

State v. Cotton, 353 P.3d 472 (Kan. Ct. App. 2015) (per curiam) 

(unpublished table decision). 

¶ 37 We likewise conclude that in a prosecution for sexual assault, 

at least under section 18-3-402(1)(h) where one of the elements of 

the offense is that the victim did not consent, statements that grant 

or withhold consent to sexual intercourse are legally significant 

independent of the assertive content of the words.7 Accordingly, the 

victim’s alleged statement “[you can] do anything to [me]” was 

admissible as nonhearsay because it had independent legal 

significance apart from the truth of the matter asserted. 

 

7 We note that lack of consent is not an element of other types of 

sexual assault. See § 18-3-402(1)(a), (b), C.R.S. 2020. But under 

the plain language of section 18-3-402(1)(h), lack of consent is an 

element that the prosecution must prove beyond a reasonable 

doubt. 
18 

F. The Error was Not Harmless 

¶ 38 We next address whether the error requires reversal. On this 

record, we hold that it does. 

¶ 39 We review nonconstitutional trial errors that were preserved by 

objection for harmless error. Hagos v. People, 2012 CO 63, ¶ 12. 

On harmless error review, we “will reverse the judgment of 

conviction if there is a reasonable probability that any error by the 

trial court contributed to [the defendant’s] conviction.” People v. 

Monroe, 2020 CO 67, ¶ 17. Whether an error is harmless depends 

on “the overall strength of the state’s case, the impact of the 

improperly admitted or excluded evidence on the trier of fact, 

whether the proffered evidence was cumulative, and the presence of 

other evidence corroborating or contradicting the point for which 

the evidence was offered.” People v. Casias, 2012 COA 117, ¶ 64 

(quoting State v. Martin V., 926 A.2d 49, 54 (Conn. App. Ct. 2007)). 

1. The Prosecution was Required to Prove Beyond a Reasonable 

Doubt that the Victim Had Not Consented 

¶ 40 The Attorney General argues that any error in refusing to 

admit this evidence was harmless because Vanderpauye’s 

“statement that [the victim] said he could do whatever he wanted to 
19 

her at some point before she fell asleep, did not, on its own terms, 

establish that she consented to intercourse when she was asleep.” 

This argument misses the mark. 

¶ 41 Vanderpauye was convicted of sexual assault (victim 

physically helpless) under section 18-3-402(1)(h). To convict a 

defendant of sexual assault under this subsection, the prosecution 

must prove the following elements beyond a reasonable doubt: 

 “The victim is physically helpless”; and 

 “the actor knows the victim is physically helpless”; and 

 “the victim has not consented.” 

Id.

¶ 42 Because the victim’s lack of consent is an element of the 

charge for which Vanderpauye was convicted, whether the victim 

consented to sexual intercourse, the extent and substance of that 

consent, and whether the victim was, in fact, asleep during the 

incident were all critical factual determinations for the jury. See 

Dunton v. People, 898 P.2d 571, 573 (Colo. 1995). Vanderpauye’s 

statement was directly relevant to these factual determinations. 
20 

2. Misleading Silence 

¶ 43 The exclusion of Vanderpauye’s statement was harmful for an 

additional and independent reason. The trial court permitted the 

victim to testify that she accused Vanderpauye of raping her but 

prohibited the jury from hearing that Vanderpauye immediately 

denied the accusation. This omission created the misleading 

impression that Vanderpauye was silent in the face of an 

accusation of criminal conduct and was therefore guilty. 

¶ 44 The United States Supreme Court has recognized that 

“[s]ilence gains more probative weight where it persists in the face of 

accusation, since it is assumed in such circumstances that the 

accused would be more likely than not to dispute an untrue 

accusation.” United States v. Hale, 422 U.S. 171, 176 (1975). The 

Colorado Supreme Court likewise has recognized that the “failure to 

deny an accusation, when the statement is heard and understood 

by an accused and could have been denied by him without 

emotional or physical impediment, is admissible as an adoptive 

admission.” People v. Quintana, 665 P.2d 605, 610 (Colo. 1983). 

¶ 45 In People v. Short, this court recognized that the exclusion of a 

defendant’s denial of wrongdoing allowed the prosecution to present 
21 

a misleading picture and could warrant reversal for a new trial. 

2018 COA 47, ¶¶ 58-59. 

¶ 46 Despite this misleading impression, the Attorney General 

argues that any error was harmless because Vanderpauye’s 

statement, “I thought you said I could do anything to you,” was 

cumulative of the evidence that the victim had abrasions on her 

knees. This argument distorts the definition of cumulative. 

¶ 47 Evidence that is “decidedly different in character and impact” 

is not cumulative. People v. Genrich, 2019 COA 132M, ¶ 117 

(Berger, J., specially concurring). 

¶ 48 True, Vanderpauye argued that the physical evidence of the 

abrasions to the victim’s knees supported his defense of consent 

because that type of injury was more consistent with consensual 

sexual behavior. However, this circumstantial evidence of consent 

was “decidedly different in character and impact” than 

Vanderpauye’s statement, which was direct evidence of consent. 

Accordingly, the omitted evidence was not cumulative. Even if this 

evidence were cumulative, the supreme court has held that 

evidence, even cumulative evidence, that “may corroborate the 
22 

defendant’s own statement should ordinarily be admitted.” People 

v. Melendez, 102 P.3d 315, 320 (Colo. 2004). 

¶ 49 We also reject the Attorney General’s argument that the “jury 

would not have credited [Vanderpauye’s] self-serving hearsay 

statement.” Maybe so. But the “determination of the credibility of 

witnesses is solely within the province of the jury.” Gonzales, 666 

P.2d at 128. We cannot say what weight the jury would have given 

the evidence. Viewing the evidence as a whole, there is a 

reasonable probability that Vanderpauye’s statement could have 

affected the jury’s verdict. 

¶ 50 For all these reasons, we reverse the judgment of conviction 

and remand for a new trial. 

III. Errors Likely to Recur on Retrial 

¶ 51 Although we reverse based upon the trial court’s erroneous 

exclusion of Vanderpauye’s hearsay statement, we address 

Vanderpauye’s other claims of error to the extent they are likely to 

arise on retrial.8

 

8 We don’t address whether the trial court erred by excluding blood 

alcohol extrapolation testimony because the principal basis for its 

exclusion — that Vanderpauye violated Crim. P. 16’s expert 
23 

A. Cold Expert Testimony9

¶ 52 Vanderpauye challenges the trial court’s admission of cold 

expert testimony about sexual assault dynamics. 

1. The Trial Court Did Not Abuse its Discretion by Denying 

Vanderpauye’s Request for a Shreck Hearing 

¶ 53 Vanderpauye argues that he was entitled to a Shreck hearing 

to determine whether Jean McAllister’s proposed testimony was 

reliable. We disagree. 

¶ 54 Vanderpauye requested a hearing under People v. Shreck, 22 

P.3d 68, 77 (Colo. 2001), regarding the endorsed cold expert. The 

trial court made the necessary CRE 702 findings without a hearing. 

 

disclosure requirements — presumably will not recur at a retrial. 

We likewise decline to address Vanderpauye’s argument that the 

trial court reversibly erred by allowing multiple witnesses to recount 

the victim’s account of the incident and emotional reaction because 

on retrial Vanderpauye’s hearsay statement will likely be admitted, 

and we are confident that the trial court will properly exercise its 

discretion under CRE 403. 

9 In People v. Cooper, 2019 COA 21, ¶ 2 (cert. granted Mar. 2, 2020), 

a division of this court defined the term “blind expert” as 

synonymous with the term “cold expert.” Most of the published 

cases addressing this concept and virtually all law review articles 

addressing the concept use the term “blind expert.” However, the 

term “blind expert” is neither particularly nor accurately descriptive 

of the concept. Some may find the term to be offensive. As a result, 

we use the term “cold expert” throughout this opinion. 
24 

¶ 55 The trial court’s decision to hold or dispense with a Shreck

hearing is reviewed for an abuse of discretion. People v. Rector, 248 

P.3d 1196, 1201 (Colo. 2011). A court abuses its discretion when 

its decision is manifestly arbitrary, unreasonable, or unfair, or if it 

misapplies the law. Baker, ¶ 29. A trial court need not hold a 

Shreck hearing “provided it has before it sufficient information to 

make specific findings under CRE 403 and CRE 702 about the 

reliability of the scientific principles involved, the expert’s 

qualification to testify to such matters, the helpfulness to the jury, 

and potential prejudice.” Rector, 248 P.3d at 1201. 

¶ 56 The trial court’s denial of Vanderpauye’s request for a Shreck

hearing was based on Vanderpauye’s motion, the prosecution’s 

response, and an amended expert endorsement (which included the 

expert’s curriculum vitae and an amended summary expert report). 

¶ 57 Numerous Colorado appellate courts have recognized the value 

and upheld the reliability of cold expert testimony regarding the 

nonintuitive reactions of victims in sexual assault cases. See, e.g., 

Venalonzo v. People, 2017 CO 9, ¶¶ 32-34. Therefore, the trial 

court did not abuse its discretion in refusing a Shreck hearing on 

the question of whether such evidence was sufficiently reliable. 
25 

2. Cold Expert Testimony that Sexual Assault is Not a Mistake or 

a Miscommunication Must be Excluded on Retrial 

¶ 58 Vanderpauye also argues that the entirety of McAllister’s 

testimony was irrelevant, was unfairly prejudicial, and should have 

been excluded. 

¶ 59 Relevant cold expert testimony gives jurors information 

necessary to understand what might otherwise seem to be 

counterintuitive actions by the victims of sexual assaults. People v. 

Relaford, 2016 COA 99, ¶ 30. But there are two substantial risks 

associated with the admission of cold expert testimony. People v. 

Cooper, 2019 COA 21, ¶ 19 (cert. granted Mar. 2, 2020). 

¶ 60 The first is that “most, if not all, expert testimony has the 

tendency to bolster the credibility of one or more witnesses.” Id.; 

Venalonzo, ¶¶ 32, 36. While expert testimony “may incidentally give 

rise to an inference that a victim is or is not telling the truth about 

the specific incident,” “this fact alone is insufficient to deny 

admission of the evidence, because expert testimony generally tends 

to bolster or attack the credibility of another witness.” People v. 

Koon, 724 P.2d 1367, 1370 (Colo. App. 1986). Nonetheless, 

witnesses may not directly or indirectly testify about the 
26 

truthfulness of another witness. See People v. Wittrein, 221 P.3d 

1076, 1081 (Colo. 2009). 

¶ 61 The second risk is that “the jury may find or infer that 

historical facts existed based solely on the expert’s testimony, 

rather than on the historical evidence presented to the jury.” 

Cooper, ¶ 21. Accordingly, “expert testimony is only admissible 

when the proffered testimony ‘fits’ the factual issues involved in the 

case.” Id. at ¶ 25 (quoting People v. Martinez, 74 P.3d 316, 323 

(Colo. 2003)). 

¶ 62 Here, the cold expert testified that it was a “myth” that “sexual 

assault is somehow a mistake or miscommunication.” This 

testimony went well beyond opinions regarding the typical 

responses of sexual assault victims. 

¶ 63 This opinion must be excluded if again offered on retrial for 

two reasons. First, the statement appears to be demonstrably 

untrue. There are obvious circumstances when a defendant is 

criminally liable for sexual assault resulting from a 

miscommunication. For example, sexual intercourse with a person 

under the age of consent constitutes a crime regardless of whether 
27 

the defendant knew that the victim was under the age of consent. 

See § 18-3-402(1)(d). 

¶ 64 Second, as we see it, the only purpose of the expert’s opinion 

in this regard was to buttress the credibility of the victim, an 

improper basis for the admission of expert testimony. See Wittrein, 

221 P.3d at 1081. 

¶ 65 On retrial, the court must, on timely objection, limit the expert 

testimony to opinions that do not improperly bolster the credibility 

of any witness and that “fit” the facts supported by evidence 

admitted at trial. 

B. The Trial Court Did Not Abuse its Discretion by Refusing 

Vanderpauye’s Tendered Intoxication Instruction 

¶ 66 Vanderpauye argues that the trial court reversibly erred by 

refusing to give his tendered intoxication instruction. We disagree. 

¶ 67 Defense counsel tendered the following instruction: 

The court admitted certain evidence for a 

limited purpose. 

In this case evidence of [the victim]’s 

intoxication has been admitted for the purpose 

of her credibility and ability to make 

observations. 

The prosecution has not and is not alleging 

that [the victim] was physically helpless or 
28 

incapable of appraising the nature of her own 

conduct due to intoxication. 

You are instructed that you cannot consider 

evidence of [the victim]’s intoxication except for 

the limited purpose described above. 

The trial court refused to give the tendered instruction. 

¶ 68 A trial court has substantial discretion in formulating jury 

instructions if “they are correct statements of the law and fairly and 

adequately cover the issues presented.” People v. Nerud, 2015 COA 

27, ¶ 35 (quoting People v. Gallegos, 226 P.3d 1112, 1115 (Colo. 

App. 2009)). “[A] trial court may refuse an instruction if it is 

argumentative, unduly emphasizes particular evidence, or contains 

statements not supported by the evidence.” People v. Baird, 66 P.3d 

183, 194 (Colo. App. 2002). We review a trial court’s decision to 

give, or not to give, a particular jury instruction for an abuse of 

discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 

¶ 69 The trial court correctly instructed the jury on the elements of 

the offenses. Moreover, the tendered instruction was argumentative 
29 

and confusing. Therefore, the trial court did not abuse its 

discretion by refusing Vanderpauye’s tendered instruction.10

C. Evidence that Vanderpauye Lied About His Age 

¶ 70 Vanderpauye contends that evidence that he lied about his age 

was irrelevant. We don’t address this contention because on retrial 

Vanderpauye’s hearsay statement will likely be admitted, bringing 

CRE 806 into play regarding impeachment. 

IV. Cumulative Error 

¶ 71 Because we have determined that the exclusion of 

Vanderpauye’s statement constituted reversible error, we need not 

and do not consider his argument of cumulative error. 

V. Conclusion 

¶ 72 The judgment of conviction is reversed, and the case is 

remanded for a new trial. 

JUDGE RICHMAN and JUDGE WELLING concur. 

 

10 Vanderpauye’s argument that this instruction was a theory of the 

case instruction was raised for the first time in the reply brief. We 

do not address issues raised for the first time in a reply brief. 

People v. Plemmons, 2021 COA 10, ¶ 9 n.1. Accordingly, we do not 

address this argument.