People v. Ramirez

• Decision Date: 26 March 2007
• Docket Number: No. 06SC71.,06SC71.
• Citation: 155 P.3d 371
• Parties: The PEOPLE of The State of Colorado, Petitioner v. Juan R. RAMIREZ, Respondent.
• Court: Colorado Supreme Court

155 P.3d 371

The PEOPLE of The State of Colorado, Petitioner v. Juan R. RAMIREZ, Respondent.

No. 06SC71.

Supreme Court of Colorado, En Banc.

March 26, 2007.

As Modified on Denial of Rehearing April 16, 2007.^*

John W. Suthers, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

We granted certiorari in this case to review the court of appeals' decision that the expert testimony of a certified pediatric nurse practitioner in a sexual assault case should not have been admitted by the trial court. The nurse described her findings as "suspicious" and testified that her conclusions were not based on a reasonable degree of medical certainty. After reviewing the cases on which the court of appeals based its decision, we find that the standards of admissibility set forth in those cases, including the requirement that expert medical testimony be offered with a reasonable degree of medical certainty or probability, predate the Colorado Rules of Evidence, which is the modern standard for determining the admissibility of expert testimony. Further, those cases are based on prior cases addressing sufficiency of evidence rather than admissibility of expert testimony. Applying the Colorado Rules of Evidence to this case, we find the nurse's testimony is sufficiently reliable and relevant to be admissible.

Additionally, we disagree with the determination of the court of appeals that the offense of sexual assault on a child includes a requirement of specific intent that the touching be done for the purposes of sexual arousal, gratification, or abuse; it is inconsistent with our subsequent resolution of this question in People v. Vigil, 127 P.3d 916 (Colo.2006).

II. Facts and Procedural History

The defendant Juan Ramirez ("Ramirez") and the victim's mother were married between 1997 and 2000. After their divorce, Ramirez continued to visit and stay overnight at the home where the victim and his two siblings resided with their mother. Ramirez was not the biological father of any of the children.

In January 2001, the victim, AV, told a friend from school that Ramirez was sexually assaulting him. AV was ten years old at the time. The friend reported AV's statements to her mother, who notified authorities. At trial, AV testified that Ramirez had sexually assaulted him. AV's brother also testified that he had witnessed one of the assaults on AV by Ramirez.

The day after AV's mother became aware of the sexual assault allegations, she took AV to a hospital for an examination. The emergency room physician who examined AV testified that AV's perineal-rectal area looked normal at that time, but that a normal exam did not rule out sexual abuse. He also testified that no special instrumentation was used during the examination.

A little over a month after the hospital exam, AV went to the Monfort Children's Clinic for further examination. At the clinic, AV was examined by Kimberly Burns ("Burns"), whose testimony is at issue here.

At trial, Burns testified as to her expertise, explaining that she has a master's degree in the primary healthcare of infants, children, and adolescents, and is a certified pediatric nurse practitioner. She also discussed her related work background and her specific training in child sexual assault examinations. She stated that she had done ninety-one sexual assault examinations and had testified in court as an expert in the area of child sexual assault examinations in five cases. After this explanation, the People offered Burns as an expert in the area of child sexual assault examinations. Defense counsel requested voir dire, and proceeded to ask Burns about her certifications and conclusions.

At one point, defense counsel asked Burns if she had been able to reach any conclusion to a reasonable degree of medical certainty. After asking for further clarification, Burns replied that her findings "are suspicious, but not diagnostic." Defense counsel stated, "And so you have not reached a conclusion to a reasonable degree of medical certainty in this case, have you?", and Burns answered, "Correct." Following his questioning of Burns, defense counsel objected to Burns' testimony on the grounds that she was not qualified to render an expert opinion, and that under CRE 702¹ and People v. Shreck, 22 P.3d 68 (Colo.2001), her testimony would not be helpful to the jury because it would not be to a reasonable degree of medical certainty. The People argued that Burns was qualified and noted that Burns' testimony would provide an expert opinion on the significance of a "so-called normal or [sic] genital exam," which would be helpful to the jury. The trial court qualified Burns to testify in matters relating to sexual assault evaluations, but reserved ruling on her opinions until later.

The direct examination resumed with Burns describing the sexual assault examination she conducted on AV. Burns explained that there are four possible findings: 1) "normal," which is the most common finding, 2) "non-specific," which could be a normal finding but also could be associated with sexual abuse, 3) "suspicious," which "raises my index of suspicion" and is a finding that may well have been caused by sexual abuse but could have been caused by something else, and 4) "definitive," which is definite evidence of sexual abuse and is a very rare finding. Burns found the results of her examination of AV to be "suspicious."²

Burns also explained that although sometimes there are visible signs of injury on a child subjected to sexual abuse, often the injuries will heal completely without a sign of an injury. Therefore, in Burns' training, a normal examination would not necessarily rule out sexual abuse. She also described her use of a special tool in examinations (colposcope) that allowed her to see more detail, and said that it would not surprise her if a doctor who did not have access to a colposcope would report a normal examination.

The next day, defense counsel renewed his objection to Burns' testimony under CRE 702 and Shreck arguing that her testimony was not useful to the jury. Specifically, he noted Burns' statement that her examination of AV resulted in a "suspicious" finding was not explained. The People argued Burns' testimony that a normal examination does not rule out sexual abuse should be admissible to refute a lay person's reasonable assumption that you would expect to see an injury. The People also argued that although Burns' "suspicious" finding was not conclusive evidence of sexual abuse, it was nevertheless helpful to the jury. The trial court allowed Burns' testimony, finding her statement that the results of her examination of AV were "suspicious" would be useful to the jury.

Ramirez was convicted of one count of sexual assault on a child. Ramirez appealed his conviction, challenging the admission of Burns' testimony and the jury instructions.³ The court of appeals reversed the conviction and sentence, finding that the trial court erroneously admitted Burns' testimony. People v. Ramirez, No. 03CA1600, slip op. at 1, 2005 WL 2666653 (Colo.App. Oct. 20, 2005) (not selected for official publication pursuant to C.A.R. 35(f)). The appellate court also directed the trial court upon remand to instruct the jury that the offense of sexual assault on a child includes a requirement of specific intent that the touching be done for the purposes of sexual arousal, gratification, or abuse, in conformance with People v. Vigil, 104 P.3d 258 (Colo.App.2004), aff'd in part, rev'd in part, 127 P.3d 916 (Colo.2006). Slip op. at 12. The People petitioned for certiorari on these issues, and we granted the petition.⁴

III. Analysis

A. Admission of Nurse Burns' Testimony

The court of appeals found that even if Burns was properly qualified as an expert, her opinion was not admissible. Slip op. at 2. This holding was based on the court's finding that Burns' testimony was speculative and therefore not a competent basis for an expert opinion. Id. at 6.

After reviewing the cases on which the court of appeals based its opinion, we find the standards used by the court are antiquated and not appropriate to deciding the admissibility of expert testimony under the Colorado Rules of Evidence, the current standard. Reviewing Burns' testimony under the modern standard, we find her testimony admissible.

1. Standards of Admissibility of Expert Testimony Used by the Court of Appeals

As discussed in more detail in the next part of this opinion, the Colorado Rules of Evidence currently govern the admissibility of expert testimony. People v. Martinez, 74 P.3d 316, 323 (Colo.2003) (citing Masters v. People, 58 P.3d 979, 988 (Colo.2002)). The Colorado Rules of Evidence were adopted by this court on October 23, 1979, and became effective January 1, 1980. Prior to the adoption of these rules, the admissibility of expert testimony was governed by common law.

In its opinion, the court of appeals acknowledged that CRE 702 governs the admissibility of expert testimony. Slip op. at 2. The court also noted some of our recent cases interpreting the admissibility of expert testimony under the Colorado Rules of Evidence, namely Martinez, 74 P.3d 316, Masters, 58 P.3d 979, and Shreck, 22 P.3d 68. Id. at 2-3. However, in addition to noting these modern cases, the court of appeals heavily relied on cases involving admission standards that either (1) predate the Colorado Rules of Evidence, or (2) are based on sufficiency of evidence rather than admissibility of testimony. Reliance on these cases leads to a standard of admissibility less flexible than that used today under the Colorado Rules of Evidence.

Specifically, the court of appeals noted that a medical opinion is admissible under Colorado law if...