Opinion by JUDGE DAILEY
¶ 1 Defendant, Roger Lee Short, appeals the judgment of conviction and sentence entered on a jurys verdicts finding him guilty of sexual assault on a child and sexual assault on a child-pattern of abuse. We affirm in part, vacate in part, and remand with directions.
I. Background
¶ 2 While driving with her Grandmother L in July 2013, the victim, an eight-year-old girl, saw Short napping in the park. The victim began to yell, while ducking down in her booster seat in order to hide from him. When Grandmother L asked what was wrong, the victim responded that she hated Short and was going to stab him someday because he had been touching her and messing with her. Upon further questioning, the victim said Short had been touching her down there, pointing to her vaginal area; had masturbated in front of her while the rest of her family had gone outside to smoke; and had told her he would kill her if she ever told anyone. Later, the victim disclosed that Short had also digitally penetrated her anus and made her dance naked.
¶ 3 Short had dated the victims other grandmother, Grandmother K, for four years, and they often visited the then four-to-seven-year-old victim at the victims home. During this time, Grandmother L and the victims mother were concerned that the victim was being sexually assaulted because she had vaginal redness and swelling, experienced behavioral changes, suffered from repeated urinary tract infections, and had regressed in her toilet training. Several times, they asked the victim if Short or anybody else was sexually assaulting her. When Grandmother L asked if anybody was touching her ... she would say no. But, if [Grandmother L] asked her if [Short] was touching her, she would not answer [Grandmother L].
¶ 4 When questioned by police, Short admitted knowing the victims family and visiting her home. He also stated that he was aware of the victims incontinence issues and that someones abusing her.
¶ 5 The prosecution charged Short with two counts of sexual assault on a child and two counts of sexual assault-pattern of abuse. One set of sexual assault and sexual assault-pattern of abuse charges was based on acts of fondling; the other was based on acts of digital penetration.
¶ 6 At trial, the victim testified in some respects inconsistently to what she had previously told others. Additionally, she could not remember how Short used to play with her and if she saw Short touch himself. She had difficulty remembering where Short touched her, although she eventually indicated that he touched her on her privates. Consequently, the prosecution introduced evidence of the victims prior statements and of possible reasons for discrepancies or inconsistencies between those statements and the victims trial testimony.
¶ 7 In his defense, Short presented two witnesses: (1) the victims primary care physician, who testified that the victims incontinence issues were attributable to physical abnormalities and not sexual assault; and (2) a clinical psychologist, who testified that Grandmother Ls presence during a forensic interview tainted the victims answers. In closing argument, he asserted that the victims allegations had been suggested to her by her mothers and Grandmother Ls repeated questions about whether Short had sexually abused her, and that the familys repeated questions gave the victim an outlet to assign blame for her incontinence and issues at home. This theory was supported, he argued, by the fact that the victim waited four years to report the abuse, despite having been repeatedly questioned about it beforehand.
¶ 8 The jury acquitted Short of the sexual abuse counts relating to the digital penetration allegations. It found him guilty, however, of sexual assault on a child and sexual assault on a child-pattern of abuse in connection with the fondling allegations. The trial court imposed two concurrent sentences on Short; the longer was for nine years to life imprisonment in the custody of the Department of Corrections.
II. Bolstering Evidence
¶ 9 Short contends that the testimony of three witnesses improperly bolstered the victims credibility. We conclude that reversal is not warranted.
¶ 10 Short focuses on the testimony of the following witnesses:
• a family therapist who, though unfamiliar with the victim or the facts of this case, answered a series of hypothetical questions based on the circumstances of the case to explain how a child like the victim might (1) not be able to disclose in court things such as anal penetration and naked dancing after having disclosed them in a clinical environment; (2) have an extreme visceral reaction upon seeing her abuser for the first time in over a year; and (3) make inconsistent statements, without that necessarily being a sign of fabrication on the childs part;
• a detective who, remembering the therapists testimony about it not being uncommon for a child to fail to disclose anal penetration, testified that, based on his training, experience, and observations of interviews, that was the case; and
• Grandmother L, who, in response to a question about whether she was concerned that the victim would not be honest with her, said, No. She, she normally would not lie about something like that.
¶ 11 Significantly, Short did not object to any of this testimony. Consequently, reversal is not warranted in the absence of plain error. See Crim. P. 52(b) ; People v. Sommers , 200 P.3d 1089, 1095 (Colo. App. 2008).
¶ 12 It is improper for a witness to testify to whether another witness was telling the truth on a specific occasion because it is solely the jurys responsibility to determine whether a particular witnesss testimony or statement is truthful. People v. Bridges , 2014 COA 65, ¶ 11, 410 P.3d 512. This rule applies to both direct and indirect implications of a [witnesss] truthfulness. Venalonzo v. People , 2017 CO 9, ¶ 32, 388 P.3d 868.
A. The Therapist
¶ 13 Our case law recognizes that [a]n expert may testify as to the typical demeanor and behavioral traits displayed by a sexually abused child, ... because it assists the jury in understanding the victims behavior after the incident-why the victim acted the way he or she did. People v. Relaford , 2016 COA 99, ¶ 28, 409 P.3d 490 (quoting People v. Mintz , 165 P.3d 829, 831 (Colo. App. 2007) ). This type of expert testimony aid[s] the jury in understanding the typicality of reactions by [children] who have been subjected to sexual abuse that might, under other circumstances, be considered bizarre. People v. Morrison , 985 P.2d 1, 6 (Colo. App. 1999), affd , 19 P.3d 668 (Colo. 2000) ; accord People v. Fasy , 829 P.2d 1314, 1317 (Colo. 1992) (The doctors testimony clearly assisted the jury in understanding the victims behavior after the incident.).
¶ 14 This type of evidence is considered proper because it (1) relates to an issue apart from credibility and (2) only incidentally tends to corroborate a witnesss testimony. Relaford , ¶ 31 (quoting People v. Cernazanu , 2015 COA 122, ¶ 20, 410 P.3d 603 ). This evidence does not say whether the child was or was not lying on a specific occasion; instead, it explains why a jury should not necessarily disbelieve a child because of circumstances that, in a different context, would discredit the childs story. See People v. Whitman , 205 P.3d 371, 383 (Colo. App. 2007). Such information provides a relevant insight into the puzzling aspects of the childs conduct and demeanor which the jury could not otherwise bring to its evaluation. Id. (quoting People v. Aldrich , 849 P.2d 821, 829 (Colo. App. 1992) ); see also State v. Myers , 359 N.W.2d 604, 610 (Minn. 1984) (Background data providing a relevant insight into the puzzling aspects of the childs conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children.) (quoted with approval by the supreme court in Fasy , 829 P.2d at 1317 ).
¶ 15 The present case is, in many respects, like People v. Mintz . There, as here,
the expert ... answered a number of hypothetical questions reflecting the facts of the present case. The expert testified about traits and behavior generally exhibited by children. He did not testify [the] victim exhibited these traits, and he did not offer an opinion about whether [the] victim told the truth about having been abused.
The purposes for which the experts testimony was admitted in the case have previously been deemed proper....
This evidence was admissible because the expert testified in general terms [and] did not focus on the truthfulness of the childs statements.
Mintz , 165 P.3d at 831-32 (quoting Morrison , 985 P.2d at 5 ); see also Morrison , 985 P.2d at 5 (The hypothetical question posed to this witness contained facts substantially identical to those disclosed by the evidence here, i.e. , one of the victims had made rather bizarre accusations against defendant and had later withdrawn them. The experts opinion that such actions are typical of the method of empowerment used by young male victims was admissible under CRE 702 to explain that such accusations and later denials by such a victim are not necessarily unusual.).
¶ 16 We reject Shorts assertion that Mintz and Morrison were wrongly decided. Persuaded by those authorities, we perceive nothing improper about the therapists testimony here.
¶ 17 In reaching this conclusion, we are cognizant of the supreme courts recent decision in Venalonzo . In that case, a forensic interviewer testified about the two girls interviews and compared their behavior to that of other child sex assault victims. Specifically, she stated that many of the childrens behaviors were common to [those of] other child sex assault victims she had interviewed.... Venalonzo , ¶ 35. The supreme court held that the only purpose for the interviewers testimony comparing [the two childrens] behavior to that of other child sex assault victims was to bolster the childrens credibility. Admitting this evidence did not make any other fact at issue more or less probable. Id. at ¶ 36 (citation omitted). Consequently, the court held that the interviewers testimony improperly bolstered the credibility of the child victims by creating an impermissible inference that they were telling the truth in this case. Id. at ¶ 2.
¶ 18 Venalonzo is distinguishable from the present case. Unlike the present case, the expert in Venalonzo was intimately involved with the child victims in the case. She was the individual who took their statements, testified to their behaviors, and compared their behaviors to those she saw in other child sexual abuse cases. The interviewer was, therefore, testifying as both a fact witness and an expert. The jury could not help but interpret what the expert had to say, in light of her dual role, as intimating her opinion that the children had been truthful during the interview.
¶ 19 In the present case, the therapist did not play a dual role. She was not involved in taking-and did not otherwise witness-the victims statements. Her expert opinions could not be interpreted as conveying an opinion of her belief in the truthfulness of the victim on another occasion.
¶ 20 Notably, the court in Venalonzo did not repudiate or retreat from its earlier decision in Fasy -a decision consistent with the principles and authorities upon which we rely here. Consistent with Fasy , the therapists testimony here permissibly conveyed to the jury information that would assist it in evaluating what might appear to be puzzling aspects of the victims behavior subsequent to the commission of the alleged offense. Although that evidence 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).
B. The Detective
¶ 21 We also perceive nothing improper about the detectives testimony. The detective was not testifying to the truthfulness of the therapist, and thus, inferentially, of the victim too. The detective was simply relating to the jury his observations about child victim disclosures; he rendered no opinion about whether a childs difficulty in disclosing something made it more or less likely that he or she was telling the truth.
C. Grandmother Ls Testimony
¶ 22 Based on our reading of other parts of Venalonzo and of Cernazanu , we conclude that Grandmother Ls testimony that the victim normally would not lie about something like that was improper.
¶ 23 In Venalonzo , the supreme court held that a mothers testimony that her child
did not display any signs that she was lying when she reported the incident, that [the child] was not sophisticated enough to make up a story about the sexual assault, and that [the child] had no reason to accuse [the defendant] unless the incident had actually occurred ... amounted to testimony that [the child] was telling the truth about the sexual assault.
Venalonzo , ¶ 39. Further, the court pointed to the prosecutors statement (you said that she wouldnt accuse somebody of this ) and question (whether the childs mind wasnt sophisticated enough to come up with this ) as eliciting the mothers comments on the childs veracity in the case. Id. at ¶ 42.
¶ 24 In Cernazanu , a division of this court held that a mothers testimony that her child did not display typical lying behavior when reporting a sexual assault necessarily implied to the jury that the victim was not lying, and thus, that she was telling the truth on that occasion. 2015 COA 122, ¶¶ 16-22, 410 P.3d 603.
¶ 25 Similar to those cases, Grandmother Ls comment that the victim would normally not lie about something like that served no other purpose than to convey to the jury Grandmother Ls belief that the victim was not lying-and, consequently, that she was telling the truth-on this occasion.
¶ 26 In so concluding, we necessarily reject the prosecutions argument that Grandmother Ls testimony was evidence of the victims general character for truthfulness, which under CRE 608(a) was admissible because Shorts defense attacked the victims character for truthfulness. The evidence challenged on appeal was not evidence of the victims general character for truthfulness but rather evidence of [the victims] specific veracity habit and its application to a specific occasion. Cernazanu , ¶ 23.
¶ 27 As noted earlier, because Short did not object to Grandmother Ls testimony, reversal is not warranted in the absence of plain error.
¶ 28 Plain error is error that is both obvious and substantial. Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116. To qualify as plain error, the error must be so clear cut that a trial judge should have been able to avoid it without benefit of objection, People v. Pollard , 2013 COA 31M, ¶ 39, 307 P.3d 1124, and it must be seriously prejudicial-that is, it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the defendants conviction. People v. Ujaama , 2012 COA 36, ¶ 43, 302 P.3d 296 ; see also Hagos , ¶ 14.
¶ 29 The rule that a witness may not express an opinion as to the credibility of another witness is both clear and long established. People v. Cook , 197 P.3d 269, 275-76 (Colo. App. 2008) ; see , e.g. , People in Interest of G.E.S. , 2016 COA 183, ¶ 31 n.2, 409 P.3d 645 ([T]his court and the supreme court have long held that a witness may not vouch for the credibility of another witness on a particular occasion[.]). Although, in some circumstances, it is not always clear how the rule applies, Relaford , ¶¶ 44-48 (sorting out permissible from impermissible expert opinion on child behaviors), it is, in our view, clear in this case. Thus, the obvious prong of the plain error standard is met.
¶ 30 The issue, then, is whether the error in allowing Grandmother Ls testimony was so seriously prejudicial as to warrant a new trial. We conclude that it was not.
¶ 31 We note, in this respect, that (1) Grandmother Ls testimony was very brief; (2) Grandmother L was not an expert, and thus, her testimony did not have the imprimatur of expertise; (3) the prosecution presented evidence (i.e., the victims vaginal redness and swelling, behavioral changes, repeated urinary tract infections, and incontinence; Shorts acknowledgment that somebody had abused the victim; and the victims vehement reaction upon seeing Short for the first time in over a year) corroborating the victims allegations of sexual misconduct; and (4) the prosecution made no reference to this part of Grandmother Ls testimony in closing argument.
¶ 32 In light of these circumstances, the error here does not cast serious doubt on the reliability of Shorts conviction; consequently, there is no plain error warranting reversal. See People v. Gallegos , 644 P.2d 920, 927 (Colo. 1982) (improperly admitting investigating officers testimony attesting to the accuracy or credibility of witness statements did not constitute plain error where the jury had an opportunity to evaluate the extensive testimony of the victim at trial); see also People v. Eppens , 979 P.2d 14, 18 (Colo. 1999) (finding a social workers testimony that she felt that [the victim] was sincere did not rise to the level of plain error because the social worker testified as a lay witness, the jury had a full opportunity to judge [the victims] credibility in light of her demeanor, and the victims testimony was corroborated by other evidence); cf. Bridges , ¶ 21 (finding error was reversible because the witness expressing the opinion was qualified as an expert witness and there was no other corroboration of the victims allegations).
III. Shorts Exculpatory Statement
¶ 33 Short contends that the trial court erroneously compelled him to forgo admitting an exculpatory part of a statement he gave to the police by telling him that, if that part of the statement was admitted, the prosecution would be permitted to expose the jury to the fact that he had previously been convicted of a felony. Although we agree, we nonetheless conclude that reversal is not warranted.
A. Facts
¶ 34 At trial, the prosecution presented evidence from Shorts recorded interview with police. Through the testimony of a detective, the prosecution introduced a statement made by Short in which he agreed someones abusing [the victim]. The prosecution did not, however, propose to admit what Short had said immediately thereafter: [B]ut it aint me.
¶ 35 Short asserted that admitting the first part of the statement without the second was a complete misrepresentation of what he said during the interview, and that he was entitled to have the second part admitted under the rule of completeness, CRE 106.
¶ 36 The trial court determined that the second part of the statement could, as Short argued, come in under the rule of completeness. However, the trial court also determined that because the second part of the statement was self-serving hearsay, if it was introduced by the defense, the prosecution would be entitled to impeach it with evidence of Shorts previous felony conviction. See CRE 806 (When a hearsay statement ... has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.); see also § 13-90-101, C.R.S. 2017 (In every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness.). Because of this ruling, Short did not attempt to admit the second part of the statement.
B. The Trial Court Erred in Ruling that an Exculpatory Part of Shorts Statement Was Admissible Subject to Impeachment Under CRE 806
¶ 37 We review a trial courts evidentiary ruling for an abuse of discretion. People v. Ibarra , 849 P.2d 33, 38 (Colo. 1993). A trial court abuses its discretion when its ruling is (1) manifestly arbitrary, unreasonable, or unfair or (2) based on an erroneous understanding or application of the law. People v. Casias , 2012 COA 117, ¶ 17, 312 P.3d 208.
¶ 38 Here, we conclude that the trial court misunderstood or misapplied the rule of completeness. The trial court correctly recognized that the second part of Shorts statement qualified the first, and, consequently, the second part could be considered as one component of a larger, completed statement. But for purposes of attributing who was the proponent of the evidence (and thus who carried the evidentiary burdens associated with its admission), the court divided the completed statement into two parts and held Short responsible for the evidentiary costs of admitting the part favoring him. This, we believe, was error. The proper course would have been to inform the prosecution that it had a choice: admit (and forfeit any objection to any pertinent part of) the completed statement or admit no part of the statement at all. If the prosecution had chosen to admit the completed statement, it could not transfer onto Short the costs of admitting that part that was favorable to him. The admission of the completed statement could not, then, be made subject to a right in the prosecution to impeach the part containing Shorts exculpatory statement.
¶ 39 At common law, the rule of completeness permitted the introduction into evidence of a part of a statement to explain or put into context another part of the statement that was (or was about to be put) in evidence; the rule did not, however, extend to portions of the statement that were irrelevant to the part of the statement that was (or was about to be put) in evidence. See People v. DelGuidice , 199 Colo. 41, 47, 606 P.2d 840, 844-85 (1979) (relying on Camps v. N.Y.C. Transit Auth. , 261 F.2d 320, 322 (2d Cir. 1958) ); see also United States v. Lanzon , 639 F.3d 1293, 1302 (11th Cir. 2011) ([I]t is consistently held that the rule [of completeness] permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced. (quoting United States v. Simms , 385 F.3d 1347, 1359 (11th Cir. 2004) ) ); Diggs v. United States , 28 A.3d 585, 597 (D.C. 2011) (The rule of completeness does not provide that when part of an out-of-court statement is introduced against its maker, the declarant has an automatic right to insist that other parts be admitted too, simply because they are favorable to his position. Rather, the rule contemplates that other parts of the statement should be admitted, in the trial courts discretion, when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact. (quoting Butler v. United States , 614 A.2d 875, 882 (D.C. 1992) ) ).
¶ 40 According to the supreme court, [t]he common-law rule of completeness is codified in CRE 106. People v. Melillo , 25 P.3d 769, 775 n.4 (Colo. 2001). CRE 106 provides that [w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
¶ 41 Because CRE 106 is identical to Fed. R. Evid. 106, we consider federal cases and authorities concerning the federal rule highly persuasive in interpreting and applying our own. See, e.g. , Faris v. Rothenberg , 648 P.2d 1089, 1091 n.1 (Colo. 1982) ( Fed. R. Civ. P. 63 is identical to C.R.C.P. 63. Thus, federal cases and authorities interpreting the federal rule are highly persuasive.); United Bank of Denver Natl Assn v. Shavlik , 189 Colo. 280, 282, 541 P.2d 317, 318 (1975) (deeming the authority and commentators on Fed. R. Civ. P. 14 to be persuasive because C.R.C.P. 14 is virtually identical).
¶ 42 One commentator has aptly summarized Fed. R. Evid. 106 thusly:
Basically, the rule prevents a party from achieving an unfair result by introducing all or part of a writing or recording out of its context. When the trial court finds that fairness requires the admission of additional evidence, the proponent must decide between allowing all of the evidence to be admitted and withdrawing the originally proffered portions.
The party who wants to complete the record is entitled under the Rule to compel the offer of the additional information at the time the proponent offers the partial evidence, rather than waiting until a later stage of the trial.... As such, the rule reduces the risk that a writing or recording will be taken out of context and that this initial misleading impression will take hold in the mind of the jury. The opponent has discretion, of course, to wait to offer the completing evidence until a later point. But the rule recognizes that sometimes waiting until later to put an unfair presentation of harmful evidence in context is just not good enough.
2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 106.02 (11th ed. 2015) (footnotes omitted); see also 1 Kenneth S. Broun, McCormick on Evidence § 56 (7th ed. 2013) (recognizing that Fed. R. Evid. 106 permits the adversary ... to require the proponent to introduce both the part which the proponent desires to introduce and other passages which are an essential part of its context); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 1:42 (4th ed. 2015) ([S]ometimes the party who offers a written or recorded statement (or part of one) may himself be required in appropriate cases to present additional parts, rather than leaving the task of providing necessary context to other parties. In both cases, the aim is to prevent distortion and consequent misleading.).
¶ 43 What happens, though, when otherwise inadmissible evidence is proffered as the means of satisfying the rule of completeness embodied in Fed. R. Evid. 106 ? Some courts, including divisions of this court, have held that the rule of completeness does not authorize the admission of otherwise inadmissible evidence. See People v. Davis , 218 P.3d 718, 731 (Colo. App. 2008) (Under the rule of completeness, when one party introduces part of a written or recorded statement, the opposing party can introduce other parts of that statement.... However, self-serving hearsay declarations made by a defendant may be excluded because there is nothing to guarantee their trustworthiness.); accord People v. Zubiate , 2013 COA 69, ¶ 33, 411 P.3d 757 (stating, in dicta, [s]elf-serving hearsay declarations made by a defendant may be excluded under the rule of completeness because there is nothing to guarantee their trustworthiness), affd , 2017 CO 17, 390 P.3d 394 ; see also United States v. Ford , 761 F.3d 641, 652 (6th Cir. 2014) ([E]xculpatory hearsay may not come in solely on the basis of [the rule of] completeness. (quoting United States v. Adams , 722 F.3d 788, 826 (6th Cir. 2013) ) ); United States v. Ortega , 203 F.3d 675, 682 (9th Cir. 2000) (Even if the rule of completeness did apply, exclusion of [the defendants] exculpatory statements was proper because these statements would still have constituted inadmissible hearsay.), holding modified on other grounds by United States v. Larson , 495 F.3d 1094 (9th Cir. 2007) ; United States v. Wilkerson , 84 F.3d 692, 696 (4th Cir. 1996) ( Rule 106 does not render admissible the evidence which is otherwise inadmissible under the hearsay rules.).
¶ 44 But that position is not the uniform view. See, e.g. , United States v. Lopez-Medina , 596 F.3d 716, 735 (10th Cir. 2010) (A hearsay objection does not block [informations] use when it is needed to provide context for a statement already admitted.); United States v. Bucci , 525 F.3d 116, 133 (1st Cir. 2008) ([O]ur case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence.); United States v. Sutton , 801 F.2d 1346, 1368 (D.C. Cir. 1986) ( Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously. A contrary construction raises the specter of distorted and misleading trials, and creates difficulties for both litigants and the trial court.); United States v. LeFevour , 798 F.2d 977, 981 (7th Cir. 1986) (Under Rule 106, otherwise inadmissible evidence is admissible where it is necessary to correct a misleading impression.); State v. Sanchez , 380 P.3d 375, 383, 383 n.4 (Utah Ct. App. 2016) (noting the split among federal and state courts over whether Rule 106 admits otherwise inadmissible hearsay, and deciding that it does allow the admission of such evidence), cert. granted , 390 P.3d 727 (Utah 2017).
¶ 45 Nor, according to a number of commentators, is the failure to admit otherwise inadmissible evidence pursuant to the rule of completeness the better view. For example, one commentator said:
A party should not be able to admit an incomplete statement that gives an unfair impression, and then object on hearsay grounds to completing statements that would rectify the unfairness.
The appropriate way to resolve the hearsay issue is to hold that the party who offers an incomplete statement or document forfeits any hearsay objection to completing evidence that is necessary to correct a misleading impression.... [B]y introducing evidence in an unfair and selective way, the proponent can be deemed to waive its right to object to hearsay that would be necessary to place that evidence in proper context. It is up to the proponent of the initial portion to decide whether to forgo that portion, or to forgo the hearsay objection to the remainder. Another way to look at it is that when the proponent offers evidence out of its necessary context, any out-of-court statement that is clearly necessary to place the evidence in proper context is not hearsay at all; rather it is admissible for the not-for-truth purpose of providing context.
2 Saltzburg et al., § 106.02 (footnotes omitted); see also 1 Mueller & Kirkpatrick, § 1:43 ([H]earsay objections should not block use of a related statement ... when it is needed to provide context for statements already admitted. Thus a statement should be admissible if needed to provide context under Rule 106 and to prevent misleading use of related statements even if the statement would otherwise be excludable as hearsay....); id. § 1:45 (On request by the accused, the court should require a prosecutor who wants to offer parts of a confession to introduce at the same time not only the incriminating parts but also self-serving or exculpatory parts that should in fairness be heard and considered at the same time. If for any reason the prosecutor introduces less than all of it, in the process deleting self-serving or exculpatory remarks that the accused wishes to have heard by the trier of fact, the rule of completeness requires the court to receive the latter.); Dale A. Nance, Verbal Completeness and Exclusionary Rules Under the Federal Rules of Evidence , 75 Tex. L. Rev. 51, 54 (1996) (If a proponent has evidence of the opponents admission, the proponent may well be tempted to introduce the part of that admission that is most damaging to the opponent, secure in the knowledge that the opponent cannot respond. The completeness doctrine vitiates this maneuver by assuring the introduction of all parts of the admission that are demanded by the opponent and that affect the inferences that may legitimately be drawn from the part of the utterance the proponent has chosen to introduce. Thus, the completeness doctrine serves a trumping function in that it trumps exclusionary rules that would otherwise prevent the opponents response.).
¶ 46 Persuaded by this latter group of authorities, we conclude that the trial court properly determined that Shorts otherwise inadmissible self-serving hearsay was admissible under the rule of completeness to qualify, explain, or place into context the evidence proffered by the prosecution. See Nance, 75 Tex. L. Rev. at 83 (Neither fairness in administration nor the ascertainment of truth is served by an interpretation of Rule 106 that would allow a proponent to take matters out of context by choosing to omit information in the knowledge that the opponent is prevented by an exclusionary rule from presenting that which is omitted.).
¶ 47 The remaining question, though, is whether the court could exact a price from Short under the rule of completeness for admitting the exculpatory portions of his statement. In United States v. Velasco , 953 F.2d 1467, 1473 n.5 (7th Cir. 1992), the Seventh Circuit Court of Appeals appeared to answer yes, or at least yes in a case where the defendant was trying, without having to take the stand himself, to get[ ] the benefit of the statement that [he] ha[d] recanted. Characterizing the defendants position there as want[ing] to have his cake, eat it too, and not have to clean up the dishes afterwards, the court said that Rule 806 was not inapplicable. Id.
¶ 48 One commentator has, however, espoused a contrary view:
If one views Rule 106 as creating a distinct hearsay exception which the opponent is now using to present his self-serving hearsay, then Rule 806 allows the proponent to impeach. If, however, one views Rule 106 as controlling the proponents use of party-opponent admissions, admissible under Rules 801(d)(2)(A) and 801(d)(2)(B), then Rule 806 implicitly precludes impeachment, because such admissions are defined as nonhearsay in the Federal Rules. The latter must be the right result because the exercise of the completeness motion should not subject the opponent to any impeachment that would not have been allowed if the proponent had presented the entirety of the statement in the first place, as it was his duty to do. The forced presentation theory of completeness answers the question of how to treat the resulting admission of the remainder.
Nance, 75 Tex. L. Rev. at 94-95 (footnotes omitted); id. at 96 (critiquing Velasco , saying its dictum mistakes the nature of the completeness doctrine, as well as the import of Rule 806 : The defendant should have been no more subject to impeachment than he would have been had the government presented the relevant whole of the post-arrest statement); cf. 1 Mueller & Kirkpatrick, § 1:45 (requiring the prosecution to offer additional parts of a statement at the outset keeps the government from putting what amounts to unfair pressure on the accused to take the witness stand).
¶ 49 In our opinion, this latter view is more in line with the purposes of the rule of completeness codified in Rule 106, and, accordingly, we adopt it. If the prosecution wants to admit part of a statement, it ought, in fairness, to pay the costs of admitting it in its (relevant) entirety under the rule of completeness. If it is not willing to pay the costs, it should not be permitted to admit any portion of the statement.
¶ 50 So far, we have been talking about Rule 106 and its application without addressing the form of the statement at issue. But by its terms, Rule 106 applies only to writings or recorded statements. Shorts statement was not admitted in this form. It was admitted through the oral testimony of a detective. Nonetheless, following the lead of federal case law on the subject, we conclude that Rule 106 principles also apply to the form of evidence proffered by the prosecution here under CRE 611(a) -which is substantively identical to Fed. R. Evid. 611(a). See, e.g. , Lopez-Medina , 596 F.3d at 734 (While Rule 106 applies only to writings and recorded statements, we have held the rule of completeness embodied in Rule 106 is substantially applicable to oral testimony, as well by virtue of Fed. R. Evid. 611(a).... (quoting United States v. Zamudio , 141 F.3d 1186, 1998 WL 166600, at *5 (10th Cir. Apr. 6, 1998) (unpublished table decision) ) ); United States v. Holden , 557 F.3d 698, 705 (6th Cir. 2009) (holding that the Rule 106 principle of completeness has since been extended to oral statements through interpretation of Fed. R. Evid. 611(a), and the two are now equivalent); United States v. Range , 94 F.3d 614, 621 (11th Cir. 1996) ( Rule 611has been read to impose the same fairness standard [as under Rule 106 ] upon conversations.); cf. State v. Cabrera-Pena , 361 S.C. 372, 605 S.E.2d 522, 525-26 (S.C. 2004) (finding that the common law of the state extends the rule of completeness in Rule 106 to oral communications).
¶ 51 The upshot of all this is that the trial court erroneously held that the exculpatory parts of Shorts statement could be admitted, subject to impeachment of Short (as the declarant) with his prior conviction, under CRE 806. In light of the courts erroneous ruling, Short did not seek to have the exculpatory parts of his statement admitted, and, consequently, the only evidence the jury heard, with respect to his statement, was that he admitted someone [was] abusing the victim.
C. The Error Was Harmless
¶ 52 Under Crim. P. 52(a), we are to disregard a harmless error. But whether we can disregard a particular error as harmless depends, in part, on (1) whether the error is classified as constitutional or nonconstitutional in dimension and (2) whether the error satisfies the appropriate harmless error test for constitutional or nonconstitutional error. See Krutsinger v. People , 219 P.3d 1054, 1058 (Colo. 2009) (discussing the harmless error tests for constitutional and nonconstitutional error).
¶ 53 For two reasons, we do not apply the harmless error test for constitutional error:
• (1) In Krutsinger , the supreme court recognized that not every erroneous evidentiary ruling ... amounts to federal constitutional error. Id. at 1062. [T]he standard or test for assessing whether a defendants right to ... present a defense has been violated by evidentiary rulings is clearly dependent upon the extent to which he was permitted to subject the prosecutors case to meaningful adversarial testing. Id. (quoting Crane v. Kentucky , 476 U.S. 683, 691, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) ). In the present case, Short was permitted to subject the prosecutions case to meaningful adversarial testing. Consequently, the trial courts error was not of constitutional dimension; and
• (2) Short did not assert in the trial court that the courts rule of completeness ruling chilled his rights to present a defense and to a fair trial. Consequently, these constitutional issues have not been preserved for appellate review. See People v. Gash , 165 P.3d 779, 781 (Colo. App. 2006) (holding evidentiary objection in the trial court based on hearsay but not confrontation grounds did not preserve alleged confrontation error for review).
¶ 54 For these reasons, we apply the harmless error test for nonconstitutional error. See, e.g. , State v. Chavez , 189 Wash.App. 1047, 2015 WL 5099540, *7 (Aug. 31, 2015) (unpublished opinion) (stating that error in precluding defendant from asking witness about other parts of statement was not an error of constitutional magnitude). Under the nonconstitutional harmless error test, the defendant bears the burden of showing prejudice from the error. Casias , ¶ 60. To obtain reversal, the defendant must establish a reasonable probability that the courts error contributed to his conviction. See id. at ¶ 62. A reasonable probability does not mean that it is more likely than not that the error caused the defendants conviction; rather, it means only a probability sufficient to undermine confidence in the outcome of the case. Id. at ¶ 63.
¶ 55 In assessing the prejudicial effect of evidentiary error,
an appellate court considers a number of factors, namely, the overall strength of the states 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.
Id. at ¶ 64 (quoting State v. Martin V. , 102 Conn.App. 381, 926 A.2d 49, 54 (Conn. App. Ct. 2007) ). [T]he single most important factor in a nonconstitutional harmless error inquiry is whether the case was close. Id. at ¶ 69 (quoting United States v. Ince , 21 F.3d 576, 584 (4th Cir. 1994) ).
¶ 56 Initially, we note that we are usually confronted with evidentiary error involving either the improper admission of something into evidence or the improper exclusion of something from the evidence. In the present case we are confronted with both. Shorts statement that someones abusing the victim was inadmissible absent compliance with the rule of completeness. Conversely, Short was improperly inhibited from introducing contextual evidence of a denial of wrongdoing on his part.
¶ 57 Shorts statement that someones abusing her was essentially cumulative of other evidence indicating that the victim had been abused. Besides the victims testimony that Short had touch[ed] her privates, the victim had vaginal redness and swelling, suffered urinary tract infections, and exhibited behavioral changes, including regression in her toilet training, dancing provocatively, making excuses to stay longer at Grandmother Ls house, and crying when she had to return to Grandmother Ks home where Short sometimes stayed. Defense counsels expert testified that the victims urinary tract infections could be attributed to sexual assault, and the victims significant behavioral changes tended to corroborate the fact of a sexual assault. See Stevens v. People , 796 P.2d 946, 956 (Colo. 1990) (recognizing that behavioral changes such as a childs loss of toilet training, sexual knowledge that is new or atypical for the child, and inappropriate sexual behavior are corroborative of sexual assault allegations).
¶ 58 The bigger problem, as we see it, was the exclusion of Shorts denial of wrongdoing. Although this evidence would not have been admissible otherwise, its absence here allowed the prosecution to present a misleading picture (i.e., of someone who had admitted knowing the victim had been abused but, apparently, had not denied doing it himself).
¶ 59 In other circumstances, such a situation could warrant reversal for a new trial. But not, we think, here. In the end, the case against Short was strong, even aside from the misleading statement that was entered into evidence. Short was shown to have had access to the victim, and on occasion was alone with the victim, around the time the victims relatives first began to suspect she was being abused. The victim reacted violently upon seeing Short unexpectedly for the first time in over a year, and she identified Short as her abuser both in out-of-court statements and in her in-court testimony. Because this was not a close case, the courts evidentiary error was not such as would undermine our confidence in the verdict. Consequently, the error was harmless.
IV. One Conviction and Sentence, Not Two
¶ 60 Short contends, the People concede, and we agree, that only one judgment of conviction and sentence should have been imposed in this case.
¶ 61 The trial court entered separate convictions and sentences for both (1) sexual assault on a child and (2) sexual assault on a child-pattern of abuse. The court sentenced Short to six years to life imprisonment on the first count, and to nine years to life imprisonment on the second count.
¶ 62 The number of convictions and sentences that could be entered turns on whether the pattern of abuse count operated only as a sentence enhancer or encompassed an additional substantive offense as well. People v. Wiseman , 2017 COA 49M, ¶ 10, 413 P.3d 233. If the former was the case, then only one conviction with an enhanced sentence could be entered; if the latter was the case, then two convictions and sentences could be entered. Id. at ¶ 11.
¶ 63 Here, the jury entered only one guilty verdict, finding Short guilty of sexual assault-pattern of abuse. As the People concede, the single verdict form does not support convictions for two separate offenses for sexual assault and sexual assault-pattern of abuse. Consequently, the pattern of abuse finding could act only as a sentence enhancer. The separate conviction and sentence for simple sexual assault must be vacated.
V. Conclusion
¶ 64 The judgment of conviction is affirmed in part and vacated in part, and the case is remanded with directions to correct the mittimus consistent with the views expressed in this opinion.
JUDGE HAWTHORNE concurs.
JUDGE WELLING specially concurs.
In the trial court, defense counsel argued that Short had said, I did not. I swear to God. Short did say this, but about sixteen seconds after he said, [B]ut it aint me, and in response to the detectives accusation (that no one tried to admit) that the victim said it was Short who touched her.
Necessarily, then, we decline to follow the Davis divisions holding to the contrary. See People v. Smoots , 2013 COA 152, ¶ 20, 396 P.3d 53 (stating that one division of the court of appeals is not obligated to follow the precedent established by another division), affd sub nom. Reyna-Abarca v. People , 2017 CO 15, 390 P.3d 816.
CRE 611(a) provides as follows:
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Ordinarily, unpreserved constitutional error would warrant relief only if the error qualified as plain error, i.e., error that is obvious and so undermine[s] the basic fairness of the trial as to cast serious doubt on the reliability of the judgment. People v. Gash , 165 P.3d 779, 781-82 (Colo. App. 2006). The type of prejudice a defendant must show to demonstrate plain error is more onerous than that which he or she must demonstrate to show reversible nonconstitutional error. See Hagos v. People , 2012 CO 63, 288 P.3d 116.
Grandmother L testified that [the victim] would wet her pants a lot and that she began pooping in her pants.
See, e.g. , People v. Abeyta , 728 P.2d 327, 331 (Colo. App. 1986) (Hearsay 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 truthworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse; an accused could create evidence for himself by making exculpatory statements for subsequent use at his trial.).