Romero v. People , 393 P.3d 973 ( 2017 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 May 1, 2017
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9 2017 CO 370
1 No. 13SC791, People v. Romero—Criminal Law—Expert Testimony—Jury Access to
2 Exhibits.
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4 This case requires the supreme court to address two issues it recently addressed
5 in two other cases, People v. Jefferson, 2017 CO 35, P.3d , and Venalonzo v.
6 People, 2017 CO 9, 388 P.3d 868. Specifically, the supreme court must resolve whether
7 (1) a trial court commits plain error when it fails to limit, sua sponte, a jury’s access to
8 recorded statements during jury deliberations and (2) a trial court abuses its discretion
9 when it allows a police officer to testify as a lay witness about the concept of grooming
0 in the context of sexual predation. The supreme court holds that (1) a trial court does
1 not commit plain error when it does not limit a jury’s access to recorded statements
2 without an objection and (2) a trial court abuses its discretion when it allows a witness
3 to testify about grooming without qualifying that witness as an expert. The supreme
4 court therefore reverses the defendant’s convictions and remands for a new trial.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2017 CO 374 Supreme Court Case No. 13SC791
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 10CA1798
7 Petitioner:
8 Benjamin John Romero,
9 v.
0 Respondent:
1 The People of the State of Colorado.
2 Judgment Reversed
3 en banc
4 May 1, 2017
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6 Attorneys for Petitioner:
7 Douglas K. Wilson, Public Defender
8 Lynn Noesner, Deputy Public Defender
9 Denver, CO
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1 Attorneys for Respondent:
2 Cynthia H. Coffman, Attorney General
3 Erin K. Grundy, Assistant Attorney General
4 Denver, CO
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7 CHIEF JUSTICE RICE delivered the Opinion of the Court.
¶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.
1 We granted certiorari to review the following issues:
1. Whether allowing the jury to have unrestricted access to videotape
statements was reversible error, and whether the court of appeals’
analysis is inconsistent with DeBella v. People, 233 P.3d 664 (Colo.
2010), Frasco v. People, 165 P.3d 701 (Colo. 2007), and the United States
Supreme Court’s decision in Henderson v. United States, 133 S. Ct.
1121 (2013).
2. Whether testimony regarding the meaning of “grooming” constitutes
specialized expert testimony, which cannot be elicited under the guise
of lay testimony.
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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.
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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 statements during deliberations.
¶5 Romero argues that the trial court committed plain error when it neglected to
limit the jury’s access to recorded statements during deliberations. However, Romero
did not object to the jury’s unfettered access during trial, and accordingly, we hold that
it was not plain error for the trial court to give the jury unfettered access to the recorded
statements.
¶6 Normally, we review a trial court’s decision on whether to restrict—and to what
degree—a jury’s access to admitted exhibits during deliberations for an abuse of
discretion. Frasco v. People, 165 P.3d 701, 705 (Colo. 2007). But here, when the trial
court allowed the jury access to recorded statements during jury deliberations, Romero
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did not object. Because he did not object, we review the trial court’s decision not to
limit jury access to recorded statements for plain error. Hagos v. People, 2012 CO 63,
¶ 14, 288 P.3d 116, 120; Crim. P. 52(b). Plain errors are errors committed by the trial
court that are (1) obvious; (2) substantial; and (3) “undermine[] the fundamental
fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of
conviction.” Hagos, ¶ 14, 288 P.3d at 120. “To qualify as plain error, the error must be
one that ‘is so clear-cut, so obvious,’ a trial judge should be able to avoid it without
benefit of objection.” People v. Ujaama, 2012 COA 36, ¶ 42, 302 P.3d 296, 304 (quoting
People v. Taylor, 159 P.3d 730, 738 (Colo. App. 2006)).
¶7 In Jefferson, we held that the trial court abused its discretion by allowing, over
the defendant’s objection, the jury to have unfettered access to recorded statements
during deliberations. ¶¶ 2–3. The trial court erred in Jefferson because it applied the
incorrect factors to determine whether unfettered access would prejudice the defendant.
¶¶ 51–53.
¶8 But here, any prejudicial effect of already-admitted evidence was not so clear-cut
that the trial court should have limited access to the recordings during jury
deliberations. There are many reasons a defendant may want a jury to have unfettered
access to recordings, including reviewing inconsistencies between the recording and
live testimony given during court proceedings. But without an objection by the
defendant to unfettered access, a trial court is not required to make sua sponte
restrictions on that access. See, e.g., Martinez v. People, 2017 CO 36,
¶ 25, P.3d (holding that trial court did not commit plain error when it did not sua
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sponte restrict jurors’ access to recorded statements during deliberations because any
error did not “undermine[] the fundamental fairness of the trial itself”).
¶9 Therefore, we affirm the court of appeals and hold that it was not plain error for
the trial court to grant unfettered access to the recordings during deliberations.
B. The trial court abused its discretion by allowing lay
testimony on “grooming.”
¶10 Romero argues that the trial court erred when it allowed a police officer to
testify, over Romero’s objection, as a lay witness about the concept of “grooming.”
Because we hold that an ordinary citizen could not be expected to be familiar with
sexual predators’ strategies, we agree with Romero and hold that the trial court abused
its discretion by not qualifying the officer as an expert.
¶11 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.¶12 Under Colorado Rule of Evidence (“CRE”) 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 CRE 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.”
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¶13 “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, 388 P.3d at 875. “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)). “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, 388 P.3d at 875.
¶14 Ultimately, to differentiate between lay and expert testimony, Colorado courts
use the following test from Venalonzo:
[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 specialized experiences, knowledge, or training, then the
witness is offering expert testimony.
¶ 2, 388 P.3d at 870–71.
¶15 Applying the Venalonzo test to this case, we hold that an ordinary citizen could
not be expected to possess the experience, skills, or knowledge required to understand
the concept of “grooming” as it relates to sexual predation. “The methods sex offenders
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use are not necessarily common knowledge.” United States v. Batton, 602 F.3d 1191,
1202 (10th Cir. 2010) (holding that admission of expert testimony to explain the concept
of “grooming” and other methods used by sexual predators to the jury was not an
abuse of discretion); see also United States v. Hitt, 473 F.3d 146 (5th Cir. 2006) (holding
same). Here, the officer gave detailed testimony as a lay witness about the concept of
grooming as it relates to a sexual predator’s methods of acquiring victims. Therefore,
the trial court abused its discretion by not qualifying the police officer as an expert
witness and admitting the officer’s testimony as lay testimony.
¶16 The inquiry is not at an end, however, because we review a trial court’s abuse of
discretion on a preserved, nonconstitutional issue for harmless error. Hagos, ¶ 12, 288
P.3d at 119. “[R]eversal is required only if the error affects the substantial rights of the
parties.” Id. But here, reversal is required because the error was not harmless. The
evidence against Romero was equivocal. For instance, on the buttocks-touching
incident—which formed the basis for two of Romero’s three convictions—C.T. testified
that she “didn’t think it was such a big deal” and was unsure whether it was purposeful
or accidental. J.W. testified that she did not think much of Romero’s actions either,
because she had cousins and uncles who also playfully hit her on the buttocks. J.W.
also testified that the incident was simply “[a] little awkward.” The defense’s theory on
this incident was that Romero lacked the requisite mens rea. But the prosecution,
relying partially on the officer’s grooming testimony, argued in closing that grooming
explained Romero’s modus operandi and from that the jury could infer his culpable
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mental state. We cannot hold, with a lack of overwhelming evidence, that the trial
court’s abuse of discretion was harmless error.
¶17 Thus, we reverse the court of appeals on this issue, reverse Romero’s convictions,
and remand for a new trial.
III. Conclusion
¶18 We affirm the court of appeals on the first issue, that it was not plain error for the
trial court to give the jury unfettered access to recorded statements during jury
deliberations. However, we reverse the court of appeals on the second issue, that the
trial court abused its discretion by allowing lay testimony on the concept of a sexual
predator’s grooming. We therefore reverse Romero’s conviction and remand for a new
trial.
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