Venalonzo v. People

Citation388 P.3d 868,2017 CO 9
Decision Date06 February 2017
Docket NumberSupreme Court Case No. 11SC878
Parties Julio VENALONZO, a/k/a Melvin Manzanares(z), Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

388 P.3d 868
2017 CO 9

Julio VENALONZO, a/k/a Melvin Manzanares(z), Petitioner,
The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 11SC878

Supreme Court of Colorado.

February 6, 2017

Attorneys for Petitioner: Douglas K. Wilson, Public Defender, Tracy C. Renner, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Petitioner Julio Venalonzo was convicted of sexual assault on a child, attempted sexual assault on a child, possession of drug paraphernalia, and resisting arrest. Venalonzo appealed, and the court of appeals affirmed in an unpublished opinion. People v. Venalonzo, No. 07CA0882, slip op. at 1, 2011 WL 4837489 (Colo. App. Oct. 13, 2011). Here, we determine whether a forensic interviewer who testified as a lay witness crossed the line between lay and expert testimony. We also address whether the interviewer, the mother of one of the child victims, and an investigating police officer improperly testified that the child victims' accusations against Venalonzo were truthful.1

¶2 First, we hold that in determining whether testimony is lay testimony under Colorado Rule of Evidence ("CRE") 701 or expert testimony under CRE 702, the trial

388 P.3d 871

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. Applying that holding, we conclude that some portions of the interviewer's testimony in this case were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. Second, we hold that the interviewer's and the mother's testimony improperly bolstered the credibility of the child victims by creating an impermissible inference that they were telling the truth in this case. However, we hold that Venalonzo opened the door to the investigating officer's statements regarding what children lie about, and therefore the trial court did not abuse its discretion in admitting those statements. Finally, we conclude that the errors in this case warrant reversal. Accordingly, we reverse the court of appeals' judgment and remand this case to that court with instructions to return the case to the trial court for further proceedings consistent with this opinion.2

I. Facts and Procedural History

¶3 Seven-year-old A.M. and eight-year-old C.O. told their respective parents that a man called them over to him while the children were playing in the hallway of their apartment complex and then touched A.M. sexually. Later that day, the two girls both made statements to the police, and, as a result of those statements, police arrested Venalonzo. During the course of the investigation, A.M. and C.O. also spoke with a child forensic interviewer, Ann Smith ("the interviewer"), at Sungate Children's Advocacy Center ("the Advocacy Center"). Both children also testified at trial.

¶4 The children never wavered in their account that a man called them over to him, and A.M. never wavered in her account that a man inappropriately touched her. There were, however, differences between A.M.'s and C.O.'s accounts. Specific details that varied included what the man who assaulted A.M. was wearing, what he was doing with his hands before he touched A.M., where he was standing, what he said to the children, how and from where he entered the building, to whom the children first told their story, and whether C.O. was present when the man assaulted A.M. Each child's own account also changed over time on these details. Moreover, A.M.'s story changed regarding where the man had touched her, including whether it was over or under her clothing, and what he did before and after.

¶5 Before trial, Venalonzo requested a summary of any expert or "specialized knowledge" testimony. The People maintained that they would not present any expert testimony, so the trial court denied Venalonzo's request. Prior to and during trial, Venalonzo objected to portions of the interviewer's testimony that he asserted were expert testimony. The trial court deferred its ruling on the objections that Venalonzo made prior to trial until it heard the interviewer's testimony. At trial, the interviewer began by testifying about the interviewing process that she used, her training, and her experience interviewing children. Venalonzo objected to this background, arguing that it called for expert testimony. The trial court called a bench conference, during which Venalonzo's defense counsel renewed his objection to the interviewer's anticipated testimony about A.M.'s and C.O.'s behavior during the interview. He argued that relating and interpreting the demeanor and language of the children during the forensic interviews—as well as discussing whether the children's behavior was common or uncommon as compared with other victims of sexual abuse—was expert testimony and that such testimony amounted to statements that the children were telling the truth in this case.

¶6 After the bench conference, the court declined to require the People to qualify the interviewer as an expert and ruled that she

388 P.3d 872

would be allowed to answer the People's questions as long as she did not comment on the children's veracity. The court did, however, allow the interviewer to testify about whether A.M.'s and C.O.'s behavior during their interviews was common among children whom she previously interviewed.

¶7 After this ruling, the People continued their direct examination. Venalonzo then specifically objected that the People were attempting to elicit expert testimony that bolstered A.M.'s and C.O.'s credibility when the People asked the interviewer to provide the following information: (1) how many children the interviewer had forensically interviewed with the Advocacy Center; (2) how many children the interviewer ultimately determined had not been abused; (3) how many times the interviewer had testified in a court of law; (4) whether children commonly tell other children about abuse before telling adults; (5) whether children typically say different things to the interviewer than they do to responding officers or Department of Human Services workers, or when testifying at trial; (6) whether specific details on which the children's stories differed—such as whether C.O. was present when A.M. was assaulted—were core or peripheral; (7) what "reproduction"—whereby child victims demonstrate inappropriate touching on their own bodies—is; (8) how A.M. "reproduced" the event in question; (9) why forensic interviewers look for signs of reproduction; and (10) whether forensic interviews sometimes lead to charges being dropped. The trial court allowed the interviewer to answer all of these questions except for two: the question regarding the gestures A.M. used to reproduce the event, ruling that this evidence was cumulative because the jury would witness A.M.'s actions when it watched the videotaped interview, and the question regarding why interviewers look for signs of reproduction, ruling that this called for expert testimony.

¶8 Venalonzo also objected to the testimony from two other witnesses: A.M.'s mother ("Mother") and the investigating police officer. The People called Mother to testify about A.M.'s outcry. During her testimony, she said that A.M. had never accused anyone else of touching her inappropriately and that she did not know of any reason for A.M. to make up such a story, stating further, "She wouldn't unless it was true." To support this position, the prosecutor asked her to testify about the signs that reveal when her daughter is lying. Mother did so, and she testified that A.M. had exhibited none of those signs when reporting the alleged assault that gave rise to this case. Finally, she stated that A.M.'s mind "wouldn't go to [the] level" of falsely accusing someone of sexual assault.

¶9 The investigating police officer also testified. On direct examination, he told the jury about his interviews with A.M. and C.O. on the day of the incident. During cross-examination, the officer agreed with defense counsel that, based on his prior experience as a school teacher, young children were suggestible and sometimes made up stories or could be talked into doing so by other children. On redirect, the prosecutor asked the officer to clarify what types of stories children tended to make up. Venalonzo objected, asserting that the testimony would constitute improper bolstering, but the trial court ruled that Venalonzo had opened the door to the question. The officer responded that children make up stories about "trivial things" but that he had never experienced children of the victim's age "making things up ... about something of a very serious nature."

¶10 Ultimately, the jury returned guilty verdicts on both the sexual assault and the attempted sexual assault charges, and the trial court sentenced Venalonzo to an indeterminate prison sentence of three years to life for sexual assault on a child and a consecutive two-year...

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