Defendant sexually abused T.M. when she was between the ages of 3 and 5. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in a position of trust.

On appeal, defendant contended that the court abused its discretion by allowing T.M. to testify. He argued that (1) the trial court erroneously considered previously recorded forensic interviews of T.M. while assessing her competence, and (2) the court’s factual findings regarding T.M.’s competence aren’t supported by the record. The court conducted a competency hearing for T.M., who was then 6 years old. When a challenge to competence is based on a witness’s youth or immaturity, a demonstration of competence earlier is relevant. Here, the recordings of interviews of T.M. from 2013 and 2014 bear directly on whether T.M. could describe events in age-appropriate language. Therefore, the trial court didn’t err by considering the forensic interviews. Further, the record demonstrates that T.M. could properly answer questions about various facets of her life and that she did so in age-appropriate language. Accordingly, the trial court didn’t abuse its discretion by finding T.M. competent to testify at trial.

            Defendant also argued that the trial court violated his confrontation rights when it allowed T.M. to have a court facility dog at her feet while she testified during trial. However, defendant’s right to confrontation doesn’t include a right to impose discomfort on an accusing witness, and the trial court’s findings that all confrontation requirements were met is supported by the record. Accordingly, the trial court didn’t abuse its discretion by allowing T.M. to testify with the court facility dog at her feet.

Defendant further argued that the trial court erred by admitting portions of a therapist’s expert testimony that he contends improperly bolstered T.M.’s testimony. Here, the prosecutor’s use of a hypothetical was too closely tailored to the facts of the case and was thus improper, but the therapist’s answer conformed to the rules guiding expert testimony. The prosecutor’s questions regarding a child’s sophistication to lie about having been sexually assaulted were also improper, but the error was harmless because the testimony didn’t substantially influence the verdict or affect the fairness of the proceedings.

The Court of Appeals agreed with defendant’s argument that the mittimus must be amended to reflect the crime of conviction.

The judgment and sentence were affirmed and the case was remanded for correction of the mittimus.

Two deputies were dispatched to defendant’s home for a well-being check in response to a report that defendant was threatening to harm himself and others. On the way to the scene, the deputies learned that defendant had an active arrest warrant. When the deputies arrived at defendant’s home, defendant indicated that he was not suicidal, and the deputies tried to place him under arrest on the outstanding warrant. Defendant ran from the deputies and then physically fought with them until they restrained and took him into custody. A jury convicted defendant of second degree assault on a peace officer, resisting arrest, and obstructing a peace officer.

On appeal, defendant contended that the trial court erred by declining to instruct the jury on self-defense as to his second degree assault on a peace officer charge. Because defendant denied committing second degree assault, he was not entitled to receive an affirmative defense instruction as to that charge.

Defendant also contended that the trial court erred by denying his motion for a mistrial based on alleged prosecutorial misconduct. Here, the prosecutor asked Deputy Martinez: “Was there any indication to you that there was illegal narcotics, ” at which point defense counsel objected, the judge sustained the objection, and the court instructed the jury to disregard the question. Although the question was improper, the possible prejudice to defendant was not substantial enough to warrant a mistrial.

Defendant also argued that the trial court violated his right to a unanimous verdict as to the charges of resisting arrest and obstruction. The unit of prosecution for resisting arrest and obstruction of a peace officer is defined in terms of discrete volitional acts, not by the number of officers involved. Therefore, the jury was not required to unanimously agree that defendant had resisted arrest from or obstructed a particular peace officer, only that he had resisted arrest from or obstructed any officer. Accordingly, there was no violation of defendant’s rights.

Lastly, defendant argued that the trial court violated his double jeopardy rights because resisting arrest is a lesser included offense of second degree assault on a peace officer, and the trial court erred by failing to merge these convictions. The Court of Appeals examined the offenses and concluded that resisting arrest is a lesser included offense of second degree assault on a peace officer. Accordingly, the trial court plainly erred by failing to merge the convictions.

The judgment of conviction for second degree assault on a peace officer and obstruction of a peace officer was affirmed. The conviction for resisting arrest was vacated and the case was remanded for correction of the mittimus.

Plaintiff’s attorney issued a subpoena requiring Fogel to appear in court to testify, and a process server claimed that he served the subpoena on Fogel at his home. After Fogel failed to appear in court on the date and time specified, the trial court issued a contempt citation and scheduled a contempt hearing. At the hearing, Fogel’s counsel argued, in part, that there was no evidence the process server tendered a check for the required mileage fee, so the subpoena was not properly served. The trial court found Fogel in contempt and sentenced him to 30 days in the county jail.

            On appeal, Fogel argued that the trial court erred by ruling that a subpoena can be validly served when the witness is not provided the required mileage fee. CRCP 45(b)(3) states that a witness being served with a subpoena may be tendered the required mileage fee “within a reasonable time after the service of the subpoena, but in any event prior to the appearance date.” Here, the record is unclear as to whether plaintiff tendered the mileage fee to Fogel within a reasonable time after service of the subpoena.

            The order was reversed and the case was remanded for a finding of whether plaintiff tendered the required mileage fee in accordance with CRCP 45(b)(3).