CO Code § 13-25-129 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 25 - Evidence- General Provisions|§ 13-25-129. Statements of a Child - Hearsay Exception

  An out-of-court statement made by a person under thirteen years of age, not otherwise admissible by a statute or court rule that provides an exception to the hearsay objection, is admissible in any criminal, delinquency, or civil proceeding in which the person is alleged to have been a victim if the conditions of subsection (5) of this section are satisfied.    An out-of-court statement made by a child, as child is defined under the statutes that are the subject of the action, or a person under fifteen years of age if child is undefined under the statutes that are the subject of the action, describing all or part of an offense of unlawful sexual behavior, as defined in section 16-22-102 (9), performed or attempted to be performed with, by, on, or in the presence of the child declarant, and that is not otherwise admissible by a statute or court rule that provides an exception to the hearsay objection, is admissible in evidence in any criminal, delinquency, or civil proceeding if the conditions of subsection (5) of this section are satisfied.    An out-of-court statement by a child, as child is defined under the statutes that are the subject of the action, describing any act of child abuse, as defined in section 18-6-401, to which the child declarant was subjected or that the child declarant witnessed, and that is not otherwise admissible by a statute or court rule that provides an exception to the hearsay objection, is admissible in evidence in any criminal, delinquency, or civil proceeding in which a child is a victim of child abuse or the subject of a proceeding alleging that a child is neglected or dependent under section 19-1-104 (1)(b), if the conditions of subsection (5) of this section are satisfied.    An out-of-court statement made by a person under thirteen years of age describing all or part of an offense contained in part 1 of article 3 of title 18, or describing an act of domestic violence as defined in section 18-6-800.3 (1), and that is not otherwise admissible by statute or court rule that provides an exception to the hearsay objection, is admissible in evidence in any criminal, delinquency, or civil proceeding if the conditions of subsection (5) of this section are satisfied.      The exceptions to the hearsay objection described in subsections (1) to (4) of this section apply only if the court finds in a pretrial hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and    The child either:   Testifies at the proceedings; or    Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.          If a statement is admitted pursuant to this section, the court shall instruct the jury in the final written instructions that during the proceeding the jury heard evidence repeating a child's out-of-court statement and that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, the jury 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.    The proponent of the statement shall give the adverse party reasonable notice of the proponent's intention to offer the statement and the particulars of the statement.      History. Source: L. 83: Entire section added, p. 629, § 1, effective May 25. L. 85: IP(1) amended, p. 676, § 5, effective June 7; IP(1) amended, p. 714, § 1, effective June 7. L. 87: IP(1) amended, p. 558, § 1, effective April 16; IP(1) amended, p. 815, § 13, effective October 1. L. 93: (2) amended, p. 515, § 1, effective July 1. L. 2003: IP(1) amended, p. 973, § 5, effective April 17. L. 2006: IP(1) amended, p. 420, § 1, effective April 13. L. 2015: IP(1) amended,(HB 15-1183), ch. 96, p. 275, § 1, effective April 10. L. 2019: Entire section amended,(SB 19-071), ch. 42, p. 144, § 1, effective July 1.    Editor's note:    Senate Bill 85-042 superseded by House Bill 85-1327.    Amendments to the introductory portion to subsection (1) by House Bill 87-1256 and Senate Bill 87-144 were harmonized.     ANNOTATION   Law reviews. For article, “Children as Witnesses: Competency and Rules Favoring Their Testimony”, see 12 Colo. Law 1982 (1983). For article, “The Child Sex Abuse Case in the Courtroom”, see 15 Colo. Law. 807 (1986). For comment, “Confrontation of Child Victim-Witnesses: Trauma, Unavailability, and Colorado's Hearsay Exceptions for Statements Describing Sexual Abuse”, see 60 Colo. L. Rev. 659 (1989). For article “The Child Witness”, see 22 Colo. Law. 1201 (1993). For article, “Children as Witnesses”, see 31 Colo. Law. 15 (Oct. 2002). For comment, “Crawford v. Washington: Child Victims of Sex Crimes in Colorado and the United States Supreme Court's Revised Approach to the Confrontation Clause”, see 82 Den. U.L. Rev. 427 (2004). For article, “The Child's Wishes in APR Proceedings: An Evidentiary Conundrum”, see 36 Colo. Law. 33 (Jan. 2007).   Statutory child hearsay exception for statements by sexual assault victims violates the confrontation clause of the sixth amendment of the U.S. constitution where the statements admitted are testimonial in nature and where defendant has not been afforded the opportunity to cross-examine the witness. People v. Moreno, 160 P.3d 242 (Colo. 2007).   Where a child's hearsay statement offered under this section is nontestimonial, the federal confrontational clause is not implicated. People v. Phillips, 2012 COA 176 , 315 P.3d 136.   Even if the statement is testimonial, where the defendant is afforded an opportunity to cross-examine the child at trial, the federal confrontation clause also is not implicated. People v. Phillips, 2012 COA 176 , 315 P.3d 136.   To use the forfeiture doctrine to deprive a defendant of the protection of the confrontation clause, the prosecution must show that defendant's wrongful conduct was designed, at least in part, to subvert the criminal justice system by depriving that system of the evidence upon which it depends. The people must prove that defendant intended to prevent or dissuade the child from testifying against him or her. People v. Moreno, 160 P.3d 242 (Colo. 2007).   This section may only be applied constitutionally to admit out-of-court testimonial statements when the defendant has forfeited the right to confrontation. Pena v. People, 173 P.3d 1107 (Colo. 2007).   Trial court must find that the time, content, and circumstances of contested statements provide sufficient safeguards of reliability and that there is sufficient corroborative evidence of the charged acts for statements of unavailable witness to be admitted under this section. Pena v. People, 173 P.3d 1107 (Colo. 2007).   Testimonial hearsay statements are admissible only if: (1) The declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the declarant. The juvenile victim's statement to an investigating officer in a question and answer format is a testimonial statement. Since, the defendant did not have an opportunity to cross-examine the juvenile victim, the statement is inadmissible. People ex rel. R.A.S., 111 P.3d 487 (Colo. App. 2004).   Admission of testimony under subsection (1) committed to sound discretion of trial court and not violative of defendant's constitutional rights. People v. Galloway, 726 P.2d 249 (Colo. App. 1986).   The admission into evidence at trial of prior out-of-court statements does not violate the confrontation clause, if the declarant is not absent but is present to testify and to submit to cross-examination. People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo. 2004); People v. Whitman, 205 P.3d 371 (Colo. App. 2007).   Section not unconstitutional on its face or as applied. Because the victims were available, testified, and were subject to cross-examination, the sixth amendment confrontation issue does not apply. People v. Whitman, 205 P.3d 371 (Colo. App. 2007).   Application of section held not to be barred on the basis of constituting an ex post facto law. People v. Koon, 724 P.2d 1367 (Colo. App. 1986).   Trial court is required to instruct contemporaneously with admission of hearsay evidence pursuant to subsection (2), and, where no such instruction is given, the judgment of conviction had to be reversed. People v. Mathes, 703 P.2d 608 (Colo. App. 1985).   If a hearsay statement is admitted pursuant to this section, a court must instruct the jury as required in subsection (2). However, failure to object to proffered evidence at trial constitutes a waiver of the objection, and such objection may not thereafter be raised on appeal. People v. Lucero, 724 P.2d 1374 (Colo. App. 1986).   This section 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. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); People v. Bowers, 801 P.2d 511 (Colo. 1990); People v. Wilson, 838 P.2d 284 (Colo. 1992); People v. Jones, 851 P.2d 247 (Colo. App. 1993); People v. Williams, 899 P.2d 306 (Colo. App. 1995); People v. Juvenile Court, 937 P.2d 758 (Colo. 1997).   This section is not controlling in every instance in which child hearsay is admitted. People v. Bolton, 859 P.2d 303 (Colo. App. 1993); People v. Bolton, 859 P.2d 311 (Colo. App. 1993).   The general assembly enacted this section to balance the interests of a person accused of the sexual abuse of a child and the interests of the truth-seeking process. McPeck v. Colo. Dept. of Soc. Servs., 919 P.2d 942 (Colo. App. 1996).   In administrative adjudication in which the sexual abuse of a child is an issue, this section provides the appropriate standard for determining the admissibility of hearsay statements of the child-declarant which describe the alleged sexual abuse. McPeck v. Colo. Dept. of Soc. Servs., 919 P.2d 942 (Colo. App. 1996).   This section provides sufficient guidelines for consistent and fair application in the trial courts. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); McPeck v. Colo. Dept. of Soc. Servs., 919 P.2d 942 (Colo. App. 1996).   Two-step analysis used when challenging hearsay evidence based on the constitutional ground of lack of confrontation: Initially, the prosecution must either produce the hearsay declarant for cross-examination, or in most instances, demonstrate his unavailability and secondly, in those instances when the unavailability of the witness is demonstrated, only hearsay bearing sufficient indicia of reliability is admissible. People v. Hise, 738 P.2d 13 (Colo. App. 1986); People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Where there is a confrontation clause challenge to hearsay evidence, the two-step analysis is still applicable when considering exceptions to the hearsay rule which are nontraditional, i.e., exceptions which are not “firmly rooted” in the law of hearsay. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   This section is in many ways more protective than the required two-step analysis, since first, unlike that analysis, it requires a showing of “sufficient safeguards of reliability” whether or not the declarant is unavailable and, second, if the declarant is unavailable, it requires corroborative evidence of the act which is the subject of the statement. Therefore, statements meeting the standard of this section also fulfill the requirements of the two-step analysis. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); People v. Dill, 904 P.2d 1367 (Colo. App. 1995), aff'd, 927 P.2d 1315 (Colo. 1996).   Statements admissible when victim testifies, in accord with subsection (1)(b)(I). People v. Williams, 899 P.2d 306 (Colo. App. 1995).   Victim need not be a “child” at the time of trial for victim's out-of-court statement to be admissible. People v. Gookins, 111 P.3d 525 (Colo. App. 2004).   Phrase “at the proceedings” in subsection (1)(b)(I) does not mean at every stage of the proceedings. Where prosecution expressed that victim would testify at trial, the requirements of this section were conditionally met. People v. Juvenile Court, 937 P.2d 758 (Colo. 1997).   The phrase “when the victim was less than 15 years of age at the time of the commission of the offense” in subsection (1) applies only to a victim of incest, as defined in § 18-6-301 . Therefore, the court did not err in applying this section to defendant's case when the victim was 16 and defendant was charged with unlawful sexual offenses other than incest. People v. Trujillo, 251 P.3d 477 (Colo. App. 2010).   Purpose of hearing under this section is not to determine the victim's competency. Rather, the determinations to be made are (1) whether sufficient safeguards of reliability exist to permit the admission of the victim's hearsay statements into evidence, and (2) whether the victim is available to testify. People v. Juvenile Court, 937 P.2d 758 (Colo. 1997).   Child's hearsay statements are admissible under this section only if court finds: (1) The time, context, and circumstances of statement provides sufficient safeguards of reliability; and (2) if child is unavailable as a witness, there must be corroborative evidence of sexual abuse that is the subject of the statement. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Although the trial court should make specific findings on which factors establish sufficient safeguards of reliability of its decision to admit the child hearsay statements, the trial court's ruling will be affirmed absent such findings if the record shows adequate factual basis to support the trial court's findings. People v. Rojas, 181 P.3d 1216 (Colo. App. 2008).   The fact that not all the relevant factors support admissibility does not require exclusion of the statements. People v. Rojas, 181 P.3d 1216 (Colo. App. 2008).   Applicability of this section is not limited to those circumstances in which the child is unavailable to testify or when the child has difficulty expressing herself. People v. Salas, 902 P.2d 398 (Colo. App. 1994).   Statutory requirement of “corroborative evidence” means any evidence, direct or by proof of surrounding circumstances, that tends to establish the act described in child's hearsay statement occurred. Stevens v. People, 796 P.2d 946 (Colo. 1990); People v. Bowers, 801 P.2d 511 (Colo. 1990).   Corroboration requirement of this section is objective method of establishing commission of sexual act rather than a guarantee of reliability of child's hearsay statement. Stevens v. People, 796 P.2d 946 (Colo. 1990).   This requirement ensures sexual abuse occurred and indirectly safeguards against wrongful conviction by requiring corroborative evidence sufficient to induce person of ordinary prudence and caution to entertain reasonable belief that sexual abuse that is subject of hearsay statement occurred. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Attendant circumstances necessary to provide adequate description of the sexual conduct are admissible and within scope of statute. People v. Serna, 738 P.2d 802 (Colo. App. 1987).   Preponderance of evidence standard of proof is applicable to trial court's determination of whether requirements for the admissibility of child's hearsay statement, as set forth in this section, have been satisfied. People v. Bowers, 801 P.2d 511 (Colo. 1990).   Finding child incompetent to testify due to child's reluctance to answer questions in courtroom setting does not automatically impair the guarantees of reliability of child's hearsay statement and render such statement inadmissible. People v. Bowers, 801 P.2d 511 (Colo. 1990).   Child's use of anatomically correct dolls and gestures were part and parcel of hearsay statements and, without independent corroborative evidence, fail to meet statutory requirements. People v. Bowers, 773 P.2d 1093 (Colo. App. 1988), aff'd, 801 P.2d 511 (Colo. 1990).   Corroborative evidence required for admissibility of child's hearsay statement pursuant to this section is evidence, direct or circumstantial, that is independent of and supplementary to statement and that tends to confirm act described in statement occurred and child's verbal or nonverbal assertions made during statement does not constitute corroborative evidence. People v. Bowers, 801 P.2d 511 (Colo. 1990); People v. Nara, 964 P.2d 578 (Colo. App. 1998).   However, even where pretrial ruling approved admission of hearsay statement by child-victim to pediatrician it was error to permit pediatrician to give impermissible opinion testimony. People v. Gaffney, 769 P.2d 1081 (Colo. 1989).   Trial court's findings concerning reliability of child victim's hearsay statements will not be disturbed on appeal if supported by the evidence. People v. Serna, 738 P.2d 802 (Colo. App. 1987).   Trial court properly considered the age of the child in light of the extensive case authority holding that such statements of very young children relating incidents of sexual abuse tend to be reliable. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Trial court examines evidence as a whole to determine whether sufficient corroboration exists to admit child's hearsay statement under this section and such determination will not be overturned unless trial court abused its discretion. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Trial judge's statements that he did not know much about the victim's character, that he had some concerns that the victim's mother was present during an interview between the child and a social worker and about the cumulative effect and rehearsal factor of the child's statements, and, as a result, that he would leave the issues of credibility and reliability to the jury did not constitute an improper delegation of duty from the court to the jury where the court found on balance that the child's statements met the reliability standard of the hearsay exception. People v. Cordova, 854 P.2d 1337 (Colo. App. 1992).   Children's age-appropriate sexual terminology cannot supply corroborative evidence of sexual abuse. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Children's demonstrations with anatomically correct dolls contained sufficient indicia of reliability for purposes of this section. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Children's behavioral changes constituted corroborative evidence of existence of sexual abuse even though such changes are not conclusive of sexual abuse. Stevens v. People, 796 P.2d 946 (Colo. 1990).   Where a child's hearsay statements falls within a recognized exception to the hearsay rule, the statement will be held to bear sufficient indicia of reliability. If it does not come within any recognized hearsay exception, it may still be admitted if it falls within the residual exception to the hearsay rule. People v. District Court, 776 P.2d 1083 (Colo. 1989).   Although trial court did not adequately identify specific factors which provided sufficient guarantees of reliability of child's hearsay statements, offer of proof by prosecuting attorney cured deficiency in trial court's ruling. People v. Bowers, 801 P.2d 511 (Colo. 1990).   Where hearsay evidence is admitted pursuant to the provisions of this section, the trial court must give the cautionary instruction contemporaneously with the admission of this particular type of evidence and again in the court's general charge to the jury at the conclusion of the case, and failure to do so is reversible error. People v. McClure, 779 P.2d 864 (Colo. 1989); People v. Cowan, 813 P.2d 810 (Colo. App. 1991).   Trial court could not admit evidence of alleged sexual assault under § 16-10-301 , then in effect before prosecution presented prima facie case to jury. Yet child's out-of-court statements could not establish a prima facie case warranting submission to the jury because, under subsection (1)(b), the statements were not admissible without the corroborative evidence. People v. Nara, 964 P.2d 578 (Colo. App. 1998).   As a result of the interplay of this section and § 16-10-301 then in effect, alleged victim's out-of-court statements could not be corroborated by similar acts, and those statements could not provide the prima facie case necessary for admission of evidence of the similar act. The trial court therefore could not properly admit evidence of either. People v. Nara, 964 P.2d 578 (Colo. App. 1998).   Sole purpose of contemporaneous instruction is to alert jury to the suspect nature of hearsay testimony and thereby promote jury's critical examination of the hearsay evidence as it is being received. People v. Jones, 843 P.2d 67 (Colo. App. 1992).   Failure to give a jury instruction on the credibility of a child's testimony at the time child's hearsay statement is admitted is not plain error in a prosecution for aggravated incest and sexual assault on a child, so long as such instruction was given as a jury instruction at the conclusion of the evidence. People v. Flysaway, 807 P.2d 1179 (Colo. App. 1990).   To find plain error, the court must conclude, after reviewing the record as a whole, that trial court's failure to give contemporaneous cautionary instruction so undermined the fundamental fairness of the trail that it cast serious doubt on the reliability of the conviction. People v. Jones, 843 P.2d 67 (Colo. App. 1992).   Plain error resulted where court failed to give cautionary instruction contemporaneously with the testimony of two expert witnesses and four other witnesses who testified as to hearsay statements made by a four year old victim and her six year old brother identifying the defendant as the perpetrator. People v. Jones, 843 P.2d 67 (Colo. App. 1992).   Cautionary instruction required by subsection (2) incorporates defendant's rights to due process and confrontation. Court should not accompany instruction with comments tending to denigrate its importance. People v. Talley, 824 P.2d 65 (Colo. App. 1991).   Where several witnesses gave testimony concerning child's hearsay statements and cautionary statement was given before the most extensive of those statements there was no plain error although the cautionary statement should be given before any testimony regarding such hearsay statements by a child. People v. Wilson, 838 P.2d 284 (Colo. 1992).   Omission of contemporaneous cautionary instruction regarding the victim's hearsay statement was not error. The 1993 amendment to subsection (2) eliminated the requirement for such a contemporaneous cautionary instruction. The amended section requires a cautionary instruction only with the final written instructions. People v. Burgess, 946 P.2d 565 (Colo. App. 1997); People v. Strean, 74 P.3d 387 (Colo. App. 2002).   Nor did it cause unfair prejudice to give a contemporaneous cautionary instruction despite the 1993 change in the law. People v. Burgess, 946 P.2d 565 (Colo. App. 1997).   Although this section requires the court to instruct the jury regarding the weight of the witness's testimony, and no such specific instruction was given, the omission did not undermine the fundamental fairness of the trial because the testimony of the witness was merely corroborative of that of the victim. People v. Wood, 743 P.2d 422 (Colo. 1987); People v. Miller, 821 P.2d 881 (Colo. App. 1991).   The court's error in failing to instruct the jury as to the witnesses' credibility did not so undermine the fairness of the trial as to require reversal of defendant's conviction where one witness's testimony was corroborative of the victim's testimony and the other witness's testimony consisted mainly of the witness's observations of the victim and the witness's experience in interpreting body language of victims of sexual abuse. People v. Miller, 821 P.2d 881 (Colo. App. 1991).   Although the state failed to fully comply with this section by not informing the defendant of the particulars of the witness's testimony, there is no reversible error because the defendant was already aware of the substance of the testimony. People v. Wood, 743 P.2d 422 (Colo. 1987); People v. Brown, 761 P.2d 261 (Colo. App. 1988).   A child who is not competent to testify is unavailable both within the meaning of subsection (1)(b)(II) and under the two-step analysis. People v. District Court, 776 P.2d 1083 (Colo. 1989); People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   “Unavailability”, both within the meaning of this section and the constitutionally required two-step analysis, can be met when the court makes a particularized finding that the child's emotional or psychological health would be substantially impaired if she were forced to testify and that such impairment will be long standing rather than transitory in nature. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Mere inconvenience or discomfort at the prospect of testifying does not meet the statutory standard of unavailability. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Where the trial court found that requiring child victim to testify would be traumatic, where the evidence showed that the trauma would be long lasting rather than transitory, and where the potential benefit to the defendant of requiring the child victim's testimony was not substantial, there was no error in the court's determination that the child victim was unavailable. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   The final requirement in order to admit statements under this section when the witness is unavailable to testify at trial is that there be corroborative evidence of the act which is the subject of the statement. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Child unavailable because testifying would gravely harm her mental and emotional health. Thus, the trial court did not err in admitting the child's statement from the forensic interview without the child testifying at trial. People in Interest of G.E.S., 2016 COA 183 , 409 P.3d 645.   Admitting a child's hearsay statements held not in error when there was expert testimony to the effect that substantial long-term emotional impairment would result from testifying in court as well as corroborative evidence in the form of physical evidence and expert opinion to satisfy the finding of unavailability. People v. Haynie, 826 P.2d 371 (Colo. App. 1991).   Both C.R.E. 803(24) and this section are residuary rules and apply only if hearsay is not otherwise admissible under the other hearsay exceptions. This section applies only to hearsay statements not otherwise admissible by statute or court rule. C.R.E. 803(24) applies to hearsay statements which are not covered by the more specific hearsay exceptions in C.R.E. 803(1) to (23). Because this section and C.R.E. 803(24) have different requirements for the admission of hearsay statements, confusion and inconsistent results may occur if either residuary provision may be applied to the same hearsay statement of a child sexual assault victim which is otherwise not admissible into evidence. Since the more specific provision should prevail, this section is the sole basis upon which hearsay evidence, which otherwise comes within the terms of that statute, may be admitted. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); People v. Bowers, 801 P.2d 511 (Colo. 1990).   Statements made by child victim to investigator and social services caseworker were properly admissible under this section where the statements in question: (1) Are reliable; (2) the child victim was unavailable; and (3) there existed corroborating evidence consisting of incriminating statements made by defendant to the investigator and the child victim's physiological reaction to a child psychiatrist's questioning regarding the abuse incident. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   This section does not infringe on a court's procedural rulemaking powers since, as with the “rape shield” statute, it effects the substantive policy of protecting certain witnesses from the sometimes traumatizing effect of facing their abusers openly in court. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).   Hearing mandated by this section is not required where prior statements were otherwise admissible by court rule. People v. Doss, 782 P.2d 1198 (Colo. App. 1989).   Section does not apply to preliminary hearings. This section applies to trial proceedings but not to such probable cause proceedings as a preliminary hearing. People v. Jensen, 765 P.2d 1028 (Colo. 1988).   This section provides a hearsay exception only for testimony regarding statements from the child victim of, or a child witness to, the charged offense and does not authorize the admission of otherwise inadmissible hearsay statements of similar transactions. People in Interest of G.W.R., 943 P.2d 466 (Colo. App. 1996).   But the better public policy to follow is that when a child is a victim of an unlawful sexual offense, this section permits the admission into evidence of hearsay statements that are not otherwise admissible under the statutes or court rule, provided the court gives a cautionary instruction to the jury both at the time the evidence is received and again in the general charge. In the event such evidence is admissible under other statutes or court rules, then the procedural requirements of this section are not implicated. People v. Pineda, 40 P.3d 60 (Colo. App. 2001).   Trial court's ruling as to admissibility of child's hearsay statement pursuant to this section is based solely upon matters presented at in-limine hearing and therefore, for purposes of an effective appellate review, the court's decision shall state on the record its findings regarding: (1) The time, content, and circumstances of statements that provide sufficient safeguards of reliability; (2) if the child is determined to be an unavailable witness, the factors rendering the child unavailable; and (3) if the child's statement is ruled admissible, the nature of the corroborative evidence of the act which is the subject of the statement. People v. Bowers, 801 P.2d 511 (Colo. 1990).   Juvenile court did not abuse its discretion by granting guardian ad litem's motion to admit child's out of court statements during the proceedings to adjudicate whether the child was dependent and neglected even though the jury ultimately found the child had not been subjected to mistreatment or abuse. People in Interest of C.L.S., 934 P.2d 851 (Colo. App. 1996).   Appellate review of trial court's determination pursuant to this section regarding admissibility of child's hearsay statement should be based upon record made at in-limine hearing and may go beyond record only if issue of harmless error or plain error is raised. People v. Bowers, 801 P.2d 511 (Colo. 1990).   This section is not applicable to videotaped statements of child abuse victim. A child victim videotape may be admitted only if it is a videotaped deposition made in compliance with § 18-3-413 which governs all videotaped statements obtained from child sexual abuse victims. People v. Newbrough, 803 P.2d 155 (Colo. 1990); People v. Carter, 919 P.2d 862 (Colo. App. 1996).   If the evidence is admissible under other statutes or court rules, then the procedural requirements of this section need not be followed. People v. Aldrich, 849 P.2d 821 (Colo. App. 1992).   Subsection (1) does not require that a child declarant be determined as competent in order for that declarant's statement to be admissible so long as the reliability requirement of the statute is met. People v. Moore, 860 P.2d 549 (Colo. App. 1993).   Where both the children's statements were made shortly after the sexual assault, the statements made by them during the course of their videotaped interviews used age-appropriate language, they were made in response to nonleading questions, and while each displayed some reluctance to discuss sexual matters, their demeanor during the course of the interviews reinforced their reliability, the trial court's admission of these statements was proper. People v. Moore, 860 P.2d 549 (Colo. App. 1993).   In determining the reliability of a child's statements under this section, the following factors may be helpful for the court to consider: (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 the child or the hearsay witness has 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. People v. District Court, 776 P.2d 1083 (Colo. 1989); People v. Dill, 904 P.2d 1367 (Colo. App. 1995), aff'd, 927 P.2d 1315 (Colo. 1996); McPeck v. Colo. Dept. of Soc. Servs., 919 P.2d 942 (Colo. App. 1996); People v. Trujillo, 923 P.2d 277 (Colo. App. 1996); People v. Frost, 5 P.3d 317 (Colo. App. 1999); People v. Underwood, 53 P.3d 765 (Colo. App. 2002); People v. Strean, 74 P.3d 387 (Colo. App. 2002).   Trial court's decision to admit child hearsay is overturned only upon a finding of an abuse of discretion. Court found victim's statement to her mother was reliable and “an outcry” made while explaining her mood swings and depression. People v. Underwood, 53 P.3d 765 (Colo. App. 2002).   Court did not err in admitting statements where statements were spontaneous, made in response to an open-ended question and not in response to any leading question, and the victim used age-appropriate language. People v. Trujillo, 923 P.2d 277 (Colo. App. 1996).   Trial court properly admitted videotaped interview. Although defendant argued on appeal that the court should have made a “particularized assessment” of the videotape's reliability, he never asked the trial court for such an assessment, and the court's findings demonstrate that it was addressing the reliability of the taped statement as well as the other out-of-court statements. People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd on other grounds, 102 P.3d 315 (Colo. 2004).   The videotaped interview was not unfairly prejudicial as both the child and the interviewer testified at trial and were subject to cross-examination. The substance of the videotaped interview did not differ significantly from testimony by these and other prosecution witnesses at trial. People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd on other grounds, 102 P.3d 315 (Colo. 2004).   A trial court does not commit plain error when it does not limit a jury's access to recorded statements without an objection by defendant. People v. Romero, 2017 CO 37, 393 P.3d 973.   Trial court's failure to exercise its discretion with regard to controlling jury access to testimonial evidence during deliberations was not harmless. Trial court could have admonished the jury not to give the exhibit undue weight or emphasis, instructed the jury that it watch the video no more than a specific number of times, or even required that the video be viewed in open court or under the supervision of a bailiff. In selecting those controls appropriate for each case, the trial court would have made a record of assessment. DeBella v. People, 233 P.3d 664 (Colo. 2010); People v. Jefferson, 2014 COA 77 M, 411 P.3d 823, aff'd, 2017 CO 35, 393 P.3d 493.   Trial court's failure to assess the potential for undue prejudice with respect to the jury's access to the videotape was a failure to exercise its discretion, and so an abuse of discretion. DeBella v. People, 233 P.3d 664 (Colo. 2010).   Trial judge should carefully consider the alternatives before placing video in unrestrained hands of jury during deliberations. The heightened danger that undue emphasis will be placed on detailed videotaped statements of victim-witnesses is exacerbated in cases where minimal evidence corroborates victim's statements and testimony. People v. Jefferson, 2014 COA 77 M, 411 P.3d 823, aff'd, 2017 CO 35, 393 P.3d 493.   Trial court abused its discretion in allowing the jury unfettered access to videotaped statements during deliberations because two of the grounds identified by the trial court were insufficient to support a reasonable conclusion that the trial court need not control the jury's access to the statements. People v. Jefferson, 2014 COA 77 M, 411 P.3d 823, aff'd, 2017 CO 35, 393 P.3d 493.   Admission of testimony of witness who did not participate in a pre-trial hearing, where such testimony was cumulative of other similar evidence properly admitted, did not undermine the fairness of the trial or cast serious doubt on the reliability of the verdict. People v. Burgess, 946 P.2d 565 (Colo. App. 1997).   This section permits hearsay testimony related to acts of mental and emotional abuse in a child abuse case. The term “health” in § 18-6-401 (1) includes both physical and mental well-being. People v. Sherrod, 204 P.3d 472 (Colo. App. 2007), rev'd on other grounds, 204 P.3d 466 (Colo. 2009).   It was not plain error for court to admit child's statements where defendant did not touch the child but where there was testimony that defendant intimidated the child into undressing herself and touching herself for the defendant's sexual gratification while threatening the child if she did not comply. The “constructive touching” of the child was sufficient to permit the testimony under the statute. People v. Cook, 197 P.3d 269 (Colo. App. 2008).   Applied in People v. Woertman, 786 P.2d 443 (Colo. App. 1989); People v. Hansen, 920 P.2d 831 (Colo. App. 1995).