## Facts

- James Edward Spence lived with a family and was accused of repeatedly sexually abusing D., the family’s daughter, when she was 10 years old or younger.
- A jury convicted Spence of sexual penetration of a child 10 or younger (Cal. Penal Code § 288.7(b)), sodomy of a child 10 or younger (§ 288.7(a)), a lewd act on a child (§ 288(a)), and oral copulation of a child 10 or younger (§ 288.7(b)).
- The jury acquitted Spence on two counts; an additional count was dismissed on the prosecution’s motion.
- The trial court sentenced Spence to 55 years to life in prison.
- The defense called a psychologist who offered opinions about Spence’s education level and writing ability.
- Over objection, the trial court allowed the prosecution to use statements Spence made under oath at a prior suppression hearing to impeach or rebut the defense expert’s opinion concerning Spence’s ability to express himself in writing.
- Before D. testified, the prosecution requested that a therapy dog and a victim-witness advocate accompany D. on the stand due to anticipated severe distress.
- The trial court permitted the accommodations, describing the dog as a comfort aid and instructing the jury to decide the case on the evidence and not on sympathy.

## Issues

1. Whether the prosecution could use the defendant’s suppression-hearing testimony to impeach or rebut a defense expert’s opinion without violating constitutional limits associated with impeachment use of suppressed statements.
2. Whether allowing a therapy dog and a victim-witness advocate to accompany a child victim while testifying violated due process or the Sixth Amendment right of confrontation.
3. Whether the trial court exceeded or misapplied California statutory authority concerning support persons for child witnesses by allowing both an advocate and a therapy dog.

## Decision

- The Court of Appeal affirmed the judgment.
- The court upheld the use of Spence’s suppression-hearing testimony to challenge the defense expert’s opinion; any arguable error was not structural and was harmless beyond a reasonable doubt given the other evidence.
- The court held that permitting the therapy dog and the advocate during the child’s testimony was within the trial court’s discretion and did not violate due process or confrontation rights.
- The court concluded the accommodations did not create an unacceptable risk of unfair prejudice, particularly given the trial court’s handling of the proceedings and jury instructions.

## Legal Principles

- A trial court has broad discretion to control the mode of witness testimony, including reasonable accommodations for a distressed child witness, so long as the measures are justified and do not materially prejudice the defendant’s right to a fair trial.
- The presence of a support person, and comfort measures associated with testimony, do not inherently violate the Confrontation Clause where the witness testifies in court and is subject to cross-examination and there is no showing of improper influence on testimony.
- Impeachment or rebuttal use of a defendant’s prior sworn testimony to attack a defense expert’s opinion may be permitted in limited circumstances; any error is reviewed under harmless-error standards rather than treated as a structural defect.
- Even when a challenged evidentiary ruling is framed as constitutional error, affirmance is appropriate when the remaining evidence of guilt is strong and the error could not reasonably have affected the verdict.

## Conclusion

The appellate court affirmed Spence’s convictions and sentence, concluding that the prosecution’s limited use of suppression-hearing testimony to rebut a defense expert and the trial court’s allowance of a therapy dog and advocate to support a distressed child witness were permissible or, at minimum, harmless beyond a reasonable doubt.


People v. Spence, 212 Cal. App. 4th 478, 151 Cal. Rptr. 3d 374 (Cal. Ct. App. 2012)