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Romero v. People

Supreme Court of Colorado, En Banc

May 1, 2017

Benjamin John Romero, Petitioner:
v.
The People of the State of Colorado. Respondent:

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA1798

          Attorneys for Petitioner: Douglas K. Wilson Lynn Noesner

          Attorneys for Respondent: Cynthia H. Coffman Erin K. Grundy

          RICE CHIEF JUSTICE

         ¶1 This case requires us to address two issues we recently addressed in two other cases, People v. Jefferson, 2017 CO 35, ___ P.3d___, and Venalonzo v. People, 2017 CO 9, 388 P.3d 868. Specifically, we must resolve whether (1) a trial court commits plain error when it fails to limit, sua sponte, a jury's access to recorded statements during jury deliberations and (2) a trial court abuses its discretion when it allows a police officer to testify as a lay witness about the concept of grooming in the context of sexual predation.[1] We hold that (1) a trial court does not commit plain error when it does not limit a jury's access to recorded statements without an objection and (2) a trial court abuses its discretion when it allows a witness to testify about grooming without qualifying that witness as an expert. We therefore reverse the defendant's convictions and remand for a new trial.

         I. Facts and Procedural History

         ¶2 The defendant, Benjamin Romero, began living with friends in 2009. During the summer, he spent time with his friends' fifteen-year-old daughters, C.T. and J.W. On one occasion, C.T. accused Romero of putting his hand down her pants and touching her over her underwear while she was sleeping. On another occasion, C.T. and J.W. accused Romero of hitting them both on the buttocks and putting his arms around them with his hands dangling near their breasts. Based on these accusations, the State charged Romero with one count of sexual assault on a child as part of a pattern of abuse and two counts of sexual assault on a child. At trial, the court admitted two recorded exhibits and gave the jury unfettered access to those exhibits during deliberations. The first exhibit was a recording of a forensic interview with one of the victims, C.T. C.T. testified at the trial. The second exhibit was a recording, from a previous case, of Romero discussing previous acts of sexual predation he had committed (also involving friends' daughters around fifteen years of age).

         ¶3 The trial court also allowed a police detective-who had conducted the recorded forensic interview of C.T.-to testify as a lay witness about the interview and the concept of "grooming" as it relates to sexual predation. Specifically, the following exchange occurred during the police officer's testimony after Romero objected to admitting the grooming testimony as lay testimony:

Q. Detective [], in the training that you have done to investigate kid crimes, and specifically when you are interviewing a child, can you tell the jury what your training has-can you tell the jury what grooming is, what that concept is?
A. Sure. Based upon my training and my experience in investigating these types of crimes, grooming is basically a process by which someone who want[s] to offend[] on a child gains the trust of the child first. Actually, even before that. They first put themselves in a position where they could be close to a child that they may want to offend at a later date. They then gain the trust of that child by just being there, talking to them, . . . and maybe just spending some time with them, buying them things, just building that trust level.
Then after an amount of time, that varies depending upon the individual, they may start incidental touching to kind of desensitize a child as to what else may be occurring later down the road before they actually get to the point of any type of sexual touching.

         ¶4 The jury convicted Romero of all three counts. The trial court sentenced Romero to thirty-six years to life in prison. On appeal, Romero made several arguments, including the two relevant to this opinion, that: (1) the trial court committed plain error by allowing the jury to have unfettered access to recorded statements made by him and one of the victims and (2) the trial court abused its discretion by allowing a police officer-who had conducted a forensic interview of one of the victims, C.T.-to testify as a lay witness about the concept of "grooming" in the context of sexual predation. The court of appeals affirmed Romero's conviction, and we granted certiorari.

         II. Analysis

         A. The trial court did not commit plain error by allowing the jury to have access to recorded ...


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