to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Katharine J. Gillespie, Senior Assistant Attorney
General Denver, Colorado
Attorneys for Respondent: Douglas K. Wilson, Public Defender
Adam Mueller, Senior Deputy Public Defender Denver, Colorado
This case, like our recently announced case Venalonzo v.
People, 2016 CO 9, P.3d, requires us to address the
difference between lay and expert testimony. Specifically,
this case requires us to resolve one issue, whether an
ordinary person would be able to differentiate reliably
between blood cast-off (i.e., blood droplets from waving a
hand around) and blood transfer (i.e., blood transferred by
physical contact). Applying the test we announced in
Venalonzo, we hold that an ordinary person would not
be able to testify reliably about the difference between
blood cast-off and blood transfer. Therefore, we affirm the
court of appeals' holding that the trial court abused its
discretion by not qualifying the police detective's blood
testimony as expert testimony.
Facts and Procedural History
On November 13, 2006, Respondent Ruben Rosendo Ramos was
riding in the front passenger seat of a car driven by his
girlfriend. His girlfriend's three children were seated
in the backseat along with R.L., his girlfriend's friend.
R.L. testified that Ramos and his girlfriend began to argue,
and that Ramos turned around and said to R.L., "I
don't know you. I don't like d[y]ke bitches like you.
I'll beat your ass." R.L. then testified that Ramos
punched her several times in the face and lower neck. When
this occurred, Ramos's hand was already bandaged and
bleeding from an unrelated injury. Blood from his bandaged
hand ended up on R.L.'s jacket and baseball cap.
Ramos's theory of defense was that he had not struck R.L.
and the blood stains were from waving his hands around.
The People charged Ramos with (1) committing a bias-motivated
crime in violation of section 18-9-121(2)(a), C.R.S. (2006),
and (2) assault in the third degree in violation of section
18-3-204, C.R.S. (2006). At trial, there were two main pieces
of evidence against Ramos. The first piece of evidence was
R.L.'s testimony. Second, and the crux of this appeal,
was a police detective's testimony that the trial court
admitted as lay testimony. The detective viewed photographic
evidence of some of the blood on R.L. and opined that it was
from transfer (i.e., physical contact) and not the product of
cast-off (i.e., Ramos's waving his hand around).
The jury convicted Ramos of both counts. He appealed, and the
court of appeals reversed in a two to one decision,
People v. Ramos, 2012 COA 191, ¶ 36, P.3d,
holding that the trial court abused its discretion by
allowing the detective to testify as a lay witness on the
subject of blood transfer. The People timely appealed. We
granted certiorari and now affirm the court of appeals.
Standard of Review
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 only when its ruling is manifestly arbitrary,
unreasonable, or unfair. Id.
Under Colorado Rule of Evidence 701, testimony is proper as
lay testimony and not expert testimony if the testimony is
"(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702." Under Colorado
Rule of Evidence 702, a party may call an expert witness if
"scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue . . . ."
"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." Venalonzo, ¶ 22.
"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." Id.
"In assessing whether an opinion is one which could be
reached by any ordinary person, 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, 983 (Colo.App. 2005) (citing
United States v. McDonald, 933 F.2d 1519, 1522 (10th
Cir. 1991)) (internal quotation marks omitted). "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."
Venalonzo, ¶ 22.
Ultimately, to differentiate between lay and expert
testimony, Colorado courts use the following test from
[I]n 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 ...