County District Court No. 16CR92 Honorable Lance Phillip
J. Weiser, Attorney General, Megan C. Rasband, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Joseph Paul Hough,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Justine Lynn Murphy, appeals her judgment of
conviction entered on a jury verdict finding her guilty of
distributing methamphetamine and contributing to the
delinquency of a minor. She contends that the district court
erred in permitting unendorsed and unqualified expert
testimony under the guise of lay opinion, and that this
testimony improperly commented on the meaning of the body
language of K.H., a prosecution witness. We reverse and
remand for a new trial.
2 K.H., then fifteen, attended a concert with his
thirty-five-year old stepsister, Murphy, in January 2016. The
following day, K.H. met with his middle school counselor and
assistant principal after one of his teachers expressed
concern because K.H. appeared ill. K.H. disclosed to the
counselor that he had used methamphetamine the night before
while partying with Murphy before the concert. When the
counselor asked K.H. if his sister "was a good person to
be hanging out with," he responded, "no[, ] because
his sister does meth and his stepmom uses heroin."
School officials searched K.H.'s backpack and discovered
drug paraphernalia and a small amount of methamphetamine.
They contacted K.H.'s father, J.H., and asked him to pick
K.H. up from school. Thereafter, K.H. was admitted to the
local hospital for evaluation and recovery.
3 School officials also contacted a school resource officer,
Deputy Chad Searcy, regarding the information K.H. had
offered about his stepsister. Based on this information,
Deputy Searcy identified Murphy through law enforcement
records and investigative techniques.
4 After notifying both J.H. and K.H. that K.H. was not under
arrest and could cease the deputy's questioning at any
time, another school resource officer, Deputy Mark Johnson,
interviewed K.H. from his hospital bed in the presence of
J.H. Deputy Johnson testified at trial that, when he asked
where K.H. obtained the methamphetamine, K.H. was not
immediately forthcoming. In response, Deputy Johnson asked,
"Did you get it from [Murphy]?" K.H. "did not
deny right away. Instead, his body language changed. He
looked - had been looking at me as I was speaking to him. He
looked down and away." Deputy Johnson testified that he
assumed, based on his training and experience, that K.H. did
not want to answer him and that the body language suggested
an affirmative answer. Deputy Johnson then asked K.H. if
Murphy sold it to him or gave it to him. K.H. stated,
"She sells it to me." J.H. terminated the interview
before Deputy Johnson could inquire about the transaction.
5 Based on Deputy Searcy's identification of Murphy, law
enforcement officers searched Murphy's home and found
6 In an interview conducted approximately nine months later,
in October, K.H. changed his story, telling Deputy Searcy
that he had procured the methamphetamine from a dealer friend
he encountered in the bathroom at the concert, and that he
had injected it before attending school the next morning. At
trial, the court admitted recorded jail phone calls Murphy
made to her mother, who said, "[K.H.] swears sometimes
that you did [give him the methamphetamine], then other times
he says no. I almost had [K.H.] convinced to just right [sic]
the letter saying he was lying because he was scared."
7 Murphy's theory of defense was that law enforcement
officials had conducted an inadequate investigation by
improperly focusing their investigation on her. She further
contended that Deputy Searcy's questioning in October was
the first time a law enforcement officer had asked K.H. where
he had acquired the drugs, claiming that K.H. consistently
said he had obtained the methamphetamine from someone he ran
into at the concert. K.H. testified at trial that he had not
purchased the drug from Murphy and had never said otherwise.
Deputy Johnson testified that, based on his training and
experience,  he believed that K.H.'s body language
indicated he was being deceptive when he looked down and away
in response to a question.
8 The jury found Murphy guilty of distributing
methamphetamine and contributing to the delinquency of a
minor. She was sentenced to eight years in the custody of the
Department of Corrections.
Standard of Review
9 We review a trial court's evidentiary decisions for an
abuse of discretion. People v. Dunlap, 975 P.2d 723,
741 (Colo.1999). A trial court abuses its discretion when its
ruling is manifestly arbitrary, unreasonable, or unfair, or
when it misinterprets or misapplies the law. Id.;
People v. Ortiz, 2016 COA 58, ¶ 14, 381 P.3d
10 If we determine the trial court abused its discretion, we
reverse only "if the error affects the substantial
rights of the parties." Hagos v. People, 2012
CO 63, ¶ 12, 288 P.3d 116, 119. In other words, "we
reverse if the error 'substantially influenced the
verdict or affected the fairness of the trial
proceedings.'" Id. (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
Lay Witness Testimony
11 Murphy contends that the trial court erred in permitting
Deputy Johnson to interpret the meaning of K.H.'s body
language because his testimony was inadmissible under CRE
701. We agree.
[T]he 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. . . . 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." 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 v. People, 2017 CO 9, ¶ 22, 388 P.3d
868, 875 (citations omitted) (quoting People v.
Rincon, 140 P.3d 976, 982 (Colo.App. ...