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
8
9                                           2017 CO 37
0
1   No. 13SC791, People v. Romero—Criminal Law—Expert Testimony—Jury Access to
2   Exhibits.
3
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 37

4                            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
5
6   Attorneys for Petitioner:
7   Douglas K. Wilson, Public Defender
8   Lynn Noesner, Deputy Public Defender
9    Denver, CO
0
1   Attorneys for Respondent:
2   Cynthia H. Coffman, Attorney General
3   Erin K. Grundy, Assistant Attorney General
4    Denver, CO
5
6
7
8
9
0
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2
3
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5
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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


                                              5
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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