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Venalonzo v. People

Supreme Court of Colorado, En Banc

February 6, 2017

Julio Venalonzo, a/k/a Melvin Manzanares(z), Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 07CA882

         Judgment Reversed

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Tracy C. Renner, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Majid Yazdi, Assistant Attorney General Denver, Colorado

          OPINION

          BOATRIGHT, JUSTICE

         ¶1 Petitioner Julio Venalonzo was convicted of sexual assault on a child, attempted sexual assault on a child, possession of drug paraphernalia, and resisting arrest. Venalonzo appealed, and the court of appeals affirmed in an unpublished opinion. People v. Venalonzo, No. 07CA0882, slip op. at 1 (Colo.App. Oct. 13, 2011). Here, we determine whether a forensic interviewer who testified as a lay witness crossed the line between lay and expert testimony. We also address whether the interviewer, the mother of one of the child victims, and an investigating police officer improperly testified that the child victims' accusations against Venalonzo were truthful.[1]

         ¶2 First, we hold that in determining whether testimony is lay testimony under Colorado Rule of Evidence ("CRE") 701 or expert testimony under CRE 702, the trial court must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person's experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that holding, we conclude that some portions of the interviewer's testimony in this case were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. Second, we hold that the interviewer's and the mother's testimony improperly bolstered the credibility of the child victims by creating an impermissible inference that they were telling the truth in this case. However, we hold that Venalonzo opened the door to the investigating officer's statements regarding what children lie about, and therefore the trial court did not abuse its discretion in admitting those statements. Finally, we conclude that the errors in this case warrant reversal. Accordingly, we reverse the court of appeals' judgment and remand this case to that court with instructions to return the case to the trial court for further proceedings consistent with this opinion.[2]

         I. Facts and Procedural History

         ¶3 Seven-year-old A.M. and eight-year-old C.O. told their respective parents that a man called them over to him while the children were playing in the hallway of their apartment complex and then touched A.M. sexually. Later that day, the two girls both made statements to the police, and, as a result of those statements, police arrested Venalonzo. During the course of the investigation, A.M. and C.O. also spoke with a child forensic interviewer, Ann Smith ("the interviewer"), at Sungate Children's Advocacy Center ("the Advocacy Center"). Both children also testified at trial.

         ¶4 The children never wavered in their account that a man called them over to him, and A.M. never wavered in her account that a man inappropriately touched her. There were, however, differences between A.M.'s and C.O.'s accounts. Specific details that varied included what the man who assaulted A.M. was wearing, what he was doing with his hands before he touched A.M., where he was standing, what he said to the children, how and from where he entered the building, to whom the children first told their story, and whether C.O. was present when the man assaulted A.M. Each child's own account also changed over time on these details. Moreover, A.M.'s story changed regarding where the man had touched her, including whether it was over or under her clothing, and what he did before and after.

         ¶5 Before trial, Venalonzo requested a summary of any expert or "specialized knowledge" testimony. The People maintained that they would not present any expert testimony, so the trial court denied Venalonzo's request. Prior to and during trial, Venalonzo objected to portions of the interviewer's testimony that he asserted were expert testimony. The trial court deferred its ruling on the objections that Venalonzo made prior to trial until it heard the interviewer's testimony. At trial, the interviewer began by testifying about the interviewing process that she used, her training, and her experience interviewing children. Venalonzo objected to this background, arguing that it called for expert testimony. The trial court called a bench conference, during which Venalonzo's defense counsel renewed his objection to the interviewer's anticipated testimony about A.M.'s and C.O.'s behavior during the interview. He argued that relating and interpreting the demeanor and language of the children during the forensic interviews-as well as discussing whether the children's behavior was common or uncommon as compared with other victims of sexual abuse-was expert testimony and that such testimony amounted to statements that the children were telling the truth in this case.

         ¶6 After the bench conference, the court declined to require the People to qualify the interviewer as an expert and ruled that she would be allowed to answer the People's questions as long as she did not comment on the children's veracity. The court did, however, allow the interviewer to testify about whether A.M.'s and C.O.'s behavior during their interviews was common among children whom she previously interviewed.

         ¶7 After this ruling, the People continued their direct examination. Venalonzo then specifically objected that the People were attempting to elicit expert testimony that bolstered A.M.'s and C.O.'s credibility when the People asked the interviewer to provide the following information: (1) how many children the interviewer had forensically interviewed with the Advocacy Center; (2) how many children the interviewer ultimately determined had not been abused; (3) how many times the interviewer had testified in a court of law; (4) whether children commonly tell other children about abuse before telling adults; (5) whether children typically say different things to the interviewer than they do to responding officers or Department of Human Services workers, or when testifying at trial; (6) whether specific details on which the children's stories differed-such as whether C.O. was present when A.M. was assaulted-were core or peripheral; (7) what "reproduction"-whereby child victims demonstrate inappropriate touching on their own bodies-is; (8) how A.M. "reproduced" the event in question; (9) why forensic interviewers look for signs of reproduction; and (10) whether forensic interviews sometimes lead to charges being dropped. The trial court allowed the interviewer to answer all of these questions except for two: the question regarding the gestures A.M. used to reproduce the event, ruling that this evidence was cumulative because the jury would witness A.M.'s actions when it watched the videotaped interview, and the question regarding why interviewers look for signs of reproduction, ruling that this called for expert testimony.

         ¶8 Venalonzo also objected to the testimony from two other witnesses: A.M.'s mother ("Mother") and the investigating police officer. The People called Mother to testify about A.M.'s outcry. During her testimony, she said that A.M. had never accused anyone else of touching her inappropriately and that she did not know of any reason for A.M. to make up such a story, stating further, "She wouldn't unless it was true." To support this position, the prosecutor asked her to testify about the signs that reveal when her daughter is lying. Mother did so, and she testified that A.M. had exhibited none of those signs when reporting the alleged assault that gave rise to this case. Finally, she stated that A.M.'s mind "wouldn't go to [the] level" of falsely accusing someone of sexual assault.

         ¶9 The investigating police officer also testified. On direct examination, he told the jury about his interviews with A.M. and C.O. on the day of the incident. During cross-examination, the officer agreed with defense counsel that, based on his prior experience as a school teacher, young children were suggestible and sometimes made up stories or could be talked into doing so by other children. On redirect, the prosecutor asked the officer to clarify what types of stories children tended to make up. Venalonzo objected, asserting that the testimony would constitute improper bolstering, but the trial court ruled that Venalonzo had opened the door to the question. The officer responded that children make up stories about "trivial things" but that he had never experienced children of the victim's age "making things up . . . about something of a very serious nature."

         ¶10 Ultimately, the jury returned guilty verdicts on both the sexual assault and the attempted sexual assault charges, and the trial court sentenced Venalonzo to an indeterminate prison sentence of three years to life for sexual assault on a child and a consecutive two-year prison sentence for attempted sexual assault on a child. Venalonzo appealed, arguing that the trial court erred when it admitted the interviewer's testimony because (1) the People had not endorsed her as an expert witness and (2) her testimony amounted to an opinion that A.M. and C.O. were telling the truth. Additionally, Venalonzo argued that the trial court erred when it allowed Mother and the investigating police officer to offer what amounted to testimony that A.M. and C.O. were telling the truth.

         ¶11 The court of appeals affirmed the trial court's rulings on all issues. The court held that the interviewer's testimony about her qualifications and training was basic information within the scope of lay opinion testimony. Venalonzo, slip op. at 9-10. Relying on People v. Tillery, 231 P.3d 36 (Colo.App. 2009), the court also noted that the interviewer's testimony comparing the children's interviews in this case to typical child victim interviews "was derived from her 'years of observing such interviews, ' not from specialized training." Venalonzo, slip op. at 10 (quoting Tillery, 231 P.3d at 42). The court of appeals then held that "the interviewer gave no opinion on whether A.M. and C.O. told the truth in their interviews, " and it stated that "[t]he likelihood that the jury could infer from the interviewer's testimony that the girls' accounts were credible does not mean the interviewer expressed that assessment." Id. at 15. Rather, the court held that the interviewer's testimony was admissible because it "spoke to the general characteristics of child victim interviews, which helped the jury assess the girls' credibility." Id.

         ¶12 The court of appeals concluded further that the interviewer's testimony was helpful because "it informed the jury that the inconsistencies in children's relation of events are common." Id. It noted that Venalonzo had opened the door to this testimony in his opening statement by suggesting that the children's inconsistent stories meant that they were lying, and that the interviewer's testimony properly responded to that attack on their credibility. Id. Finally, it held that the interviewer properly testified that forensic interviews sometimes result in exonerating suspects because the interviewer was responding to Venalonzo's implication during cross-examination that the interviewer and the organization she worked for were biased in favor of law enforcement. Id. at 16.

         ¶13 The court of appeals also rejected Venalonzo's arguments regarding Mother and the investigating police officer. As to Mother, it held that her testimony went to A.M.'s sophistication and general characteristics for truthfulness. In doing so, the court of appeals stated that trial courts "may admit opinion testimony about the general credibility of a child sex assault victim if it will 'assist the jury in evaluating the credibility of the testifying child [victim]' and if it relates to general characteristics for truthfulness." Id. at 11-12 (quoting People v. Woertman, 786 P.2d 443, 447 (Colo.App. 1989), rev'd on other grounds, 804 P.2d 188 (Colo. 1991)). It also noted that Mother never explicitly testified that A.M. was telling the truth and that, in any event, Venalonzo had opened the door by implying on cross-examination that A.M. had been following C.O.'s lead when she made up the allegations. As to the officer, it held that his testimony regarding what types of things children make up stories about was proper. According to the court of appeals, Venalonzo opened the door to this testimony, and it was relevant because it "helped the jury 'make a more informed decision in evaluating the credibility of a testifying child.'" Id. at 14 (quoting People v. Koon, 713 P.2d 410, 411 (Colo.App. 1985)). The court of appeals rejected all of Venalonzo's remaining arguments.

          ¶14 We granted Venalonzo's petition for certiorari. Ultimately, we reverse the convictions.

         II. Standard of Review

         ¶15 We review a trial court's evidentiary decisions for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

         III. Analysis

         ¶16 We first consider Venalonzo's contention that the trial court erred in admitting the interviewer's testimony without requiring that the People endorse her as an expert witness. We hold that in determining whether testimony is lay testimony under CRE 701 or expert testimony under CRE 702, the trial court must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person's experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that holding, we conclude that some portions of the interviewer's testimony in this case were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. Second, we consider Venalonzo's argument that the interviewer's, Mother's, and the investigating officer's testimony violated the rule against testimony that a witness is telling the truth in a specific instance. We hold that the interviewer's and Mother's testimony improperly bolstered A.M.'s and C.O.'s credibility by creating an impermissible inference that they were telling the truth in this case. However, we hold that Venalonzo opened the door to the investigating officer's statements regarding what children lie about, and therefore the trial court did not abuse its discretion in admitting those statements. Finally, we conclude that the errors in this case warrant reversal.

         A. Expert Testimony 1. Law

         ¶17 Whether a witness's testimony is lay or expert depends on the facts and surrounding circumstances of the case and "requires a case-by-case analysis of both the witness and the witness's opinion." United States v. Smith, 591 F.3d 974, 982-83 (8th Cir. 2010). To make this determination, we must start with the Colorado Rules of Evidence.

         ¶18 Together, CRE 701 and 702 distinguish lay testimony from expert testimony. CRE 701 defines the scope of lay witness opinion testimony. It provides that lay witness testimony in the form of opinions or inferences must be "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness'[s] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [CRE] 702." CRE 702, on the other hand, concerns the admissibility of expert testimony. Under this rule, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." CRE 702.

         ¶19 Previously, we considered this distinction between lay and expert testimony in Stewart. There, a police officer testified about his training in investigating and reconstructing traffic accidents, his observations and reconstruction of the crime scene at issue in the case, and the inferences he drew from the reconstruction. Stewart, 55 P.3d at 122-23. We held that the officer's testimony about his observations of the crime scene and his investigation of the incident were admissible as lay opinion testimony. Id. at 124. His "deductions about . . . the vehicle's direction, position, and speed" during the accident, however, required specialized training and knowledge and were therefore expert testimony. Id. Accordingly, we concluded that the trial court abused its discretion in admitting the investigating police officer's accident reconstruction testimony without requiring that he be qualified as an expert. Id.

         ¶20 Similarly, in People v. Veren, 140 P.3d 131, 139-40 (Colo.App. 2005), the court of appeals considered whether a police officer's testimony that he suspected a defendant of manufacturing methamphetamine solely because the defendant possessed a large amount of Sudafed was expert testimony. The court held that this was improper expert testimony in the guise of lay opinion because it required specialized knowledge. Id. at 139. The court of appeals reasoned that while ordinary people might know that Sudafed contains an ingredient that can be used to manufacture methamphetamine, they probably would not know how much Sudafed would be required for this purpose. Id. The court of appeals noted that "the only persons having such knowledge would be those who are either actually involved in the sale of illegal substances, or those who are involved in law enforcement's effort to curb such sales." Id. (quoting State v. Rothlisberger, 95 P.3d 1193, 1200 n.5 (Utah App. 2004)). Therefore, the Veren court held that the officer's testimony was expert testimony because, without specialized knowledge and training, the officer would not have been able to infer based on the facts that he observed that the defendant intended to manufacture and sell methamphetamine. Id.

         ¶21 While this court has addressed the line between lay and expert testimony in the context of police officers, we have not done so for forensic interviewers. Thus, case law from other jurisdictions is informative. State v. Gonzalez, 834 A.2d 354 (N.H. 2003), is particularly relevant to our inquiry here. In Gonzalez, the New Hampshire Supreme Court addressed a social worker's testimony that victim recantations or denials are not unusual in sexual abuse cases. Id. at 358. The prosecutor first asked the social worker whether she had received any training or education about sexual abuse allegations, and then asked whether recantations are unusual in sexual abuse cases. Id. at 356. The social worker responded that recantations are not unusual. Id. The court held that the witness's statements concerning "a child's delayed disclosure of abuse, inconsistent statements about abuse, and recantation of statements about abuse" constituted expert testimony because those behaviors "may be puzzling or appear counterintuitive to lay observers when they consider the suffering endured by a child who is continually being abused." Id. at 358 (quoting State v. Cressey, 628 A.2d 696, 702 (N.H. 1993)). In other words, the testimony was improper because an ordinary person would not know that children commonly delay disclosing abuse.

         ¶22 As these cases illustrate, the critical factor in distinguishing between lay and expert testimony is the basis for the witness's opinion. That is, the proper inquiry is not whether a witness draws on her personal experiences to inform her testimony; all witnesses rely on their personal experience when testifying. Rather, it is the nature of the experiences that could form the opinion's basis that determines whether the testimony is lay or expert opinion. See Stewart, 55 P.3d at 123; see also People v. Souva, 141 P.3d 845, 849 (Colo.App. 2005) (concluding that an eye witness who happens to be a certified addictions counselor may offer lay testimony about whether the defendant appeared to be under the influence of drugs at the time she observed him). To determine whether the testimony in question is testimony that an ordinary person could give, "courts consider whether ordinary citizens can be expected to know certain information or to have had certain experiences." People v. Rincon, 140 P.3d 976, 982 (Colo.App. 2005) (citing United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991)). Expert testimony, by contrast, is that which goes beyond the realm of common experience and requires experience, skills, or knowledge that the ordinary person would not have. See James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011).

         ¶23 Hence, we hold that in determining whether testimony is lay testimony under CRE 701 or expert testimony under CRE 702, the trial court must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person's experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony.

         ¶24 This distinction can be a difficult one, and because it requires trial courts to engage in fact-specific analyses in the course of trial, we review their conclusions for an abuse of discretion.

         ¶25 With this understanding in mind, we now turn to the trial court's decision to admit the interviewer's testimony as lay opinion in this case.

         2. Application

         ¶26 Here, Venalonzo challenges specific portions of the interviewer's testimony. We treat these challenges separately because we conclude that some, but not ...


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