     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 April 9, 2020

                                2020COA62

No. 16CA0244, People v. Ornelas-Licano — Crimes — Criminal
Attempt — Murder in the Second Degree — First Degree Assault
— Extreme Indifference; Colorado Constitution — Equal
Protection; Evidence — Testimony by Experts

     This is an appeal from a criminal conviction for second degree

murder. On appeal, the defendant contends that his conviction

violates equal protection guarantees because attempted second

degree murder is indistinguishable from the lesser offense of

attempted first degree assault – extreme indifference. He also

argues that the trial court abused its discretion by admitting expert

testimony of a police officer analyzing the shape of a bullet hole in a

windshield to determine where the shot came from.

     A division of the court of appeals unanimously rejects

defendant’s equal protection challenge, concluding that the conduct

proscribed by the second degree murder statute and first degree
assault – extreme indifference statute is distinguishable for equal

protection purposes. The division, with one judge dissenting, also

concludes that the trial court abused its discretion by admitting the

officer’s expert testimony because his experience did not qualify him

to opine on the relationship between the angle of impact and shape

of the bullet hole, and there is nothing in the record beyond the

officer’s own assertions to show that someone can determine from

the shape of a bullet hole in a windshield where the bullet came

from. Because the majority of the division concludes this error was

not harmless, it reverses.
COLORADO COURT OF APPEALS                                           2020COA62


Court of Appeals No. 16CA0244
Larimer County District Court No. 14CR1760
Honorable Stephen J. Schapanksi, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Ornelas-Licano,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division VI
                          Opinion by JUDGE WELLING
                              Martinez*, J., concurs
                 Berger, J., concurs in part and dissents in part

                            Announced April 9, 2020


Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Defendant, Jose Ornelas-Licano, appeals his conviction for

 attempted second degree murder. He argues that his conviction

 violates equal protection guarantees because attempted second

 degree murder is indistinguishable from the lesser offense of

 attempted first degree assault – extreme indifference. He also

 argues that the trial court abused its discretion by admitting expert

 testimony of a police officer analyzing the shape of a bullet hole in a

 windshield to determine where the shot came from.

¶2    We first conclude that the conduct proscribed by the second

 degree murder statute and first degree assault – extreme

 indifference statute is distinguishable for equal protection purposes.

 We next conclude that the trial court abused its discretion by

 admitting the officer’s expert testimony because his experience did

 not qualify him to opine on the relationship between the angle of

 impact and shape of the bullet hole, and there is nothing in the

 record beyond the officer’s own assertions to show that someone

 can determine from the shape of a bullet hole in a windshield where

 the bullet came from. Because this error was not harmless, we

 reverse.




                                    1
             I.    Relevant Facts and Procedural History

¶3    For reasons not pertinent to this appeal, a warrant was issued

 for Ornelas-Licano’s arrest. An officer driving an unmarked vehicle

 located Ornelas-Licano in his pickup truck parked in a driveway.

 The officer called for backup because he had been told that

 Ornelas-Licano might be armed. More officers arrived in their

 vehicles, turned on their emergency lights, and pulled up near

 Ornelas-Licano’s truck.

¶4    The officers got out and, with their guns drawn, commanded

 Ornelas-Licano to put his hands up and shut off the truck.

 Ornelas-Licano initially complied with the officers’ commands, but

 ultimately put the truck in gear and fled the scene. A chase

 ensued.

¶5    During the chase, Ornelas-Licano approached a marked police

 vehicle at an intersection. As the vehicles drew closer, a shot went

 off inside Ornelas-Licano’s truck, resulting in a bullet hole in his

 truck’s windshield. No one was hit, and the chase continued.

¶6    Ornelas-Licano eventually ran into another car, abandoned his

 truck and his gun, and fled on foot. Police ultimately apprehended

 him without further incident.


                                    2
¶7    After his arrest, Ornelas-Licano claimed that he had fired the

 gun accidentally while operating the stick shift for the truck’s

 manual transmission. The prosecutor did not credit this account

 and charged him with attempted first degree murder of the officer in

 the vehicle at the intersection and the lesser included offenses of

 attempted second degree murder and attempted first degree

 assault – extreme indifference. He was also charged with eluding

 police, leaving the scene of an accident, and other crimes.

¶8    At trial, Ornelas-Licano argued that he was not guilty of

 attempted murder or attempted assault because he had fired the

 gun accidentally. In other words, because the gunshot was the

 result of an accidental discharge, he acted without the requisite

 intent to commit either attempted murder or attempted assault.

 Ornelas-Licano’s lawyer told the jury that he was not contesting the

 other charges.

¶9    The prosecutor argued that Ornelas-Licano had intentionally

 pointed the gun at the officer in the police vehicle and fired. A

 police officer, qualified as an expert, testified that, based on the

 shape of the bullet hole in the truck’s windshield, the shot had been




                                     3
  fired from shoulder height, rather than from below the dash, near

  the stick shift, as Ornelas-Licano had claimed.

¶ 10         To rebut this testimony, Ornelas-Licano called his own expert

  witness, who testified that there were too many variables in play to

  conclude, based on either the shape of the bullet hole in the

  windshield or the experiment the prosecution expert conducted,

  that the shot had come from shoulder height, rather than below the

  dash.

¶ 11         A jury convicted Ornelas-Licano of attempted second degree

  murder, eluding police, reckless driving, leaving the scene of an

  accident, possession of a defaced firearm, and prohibited use of a

  weapon, and the trial court sentenced him accordingly. Ornelas-

  Licano appeals only the conviction for attempted second degree

  murder.

       II.     Ornelas-Licano’s Equal Protection Claim Is Without Merit

¶ 12         Ornelas-Licano first contends that his conviction for attempted

  second degree murder violates equal protection guarantees because




                                         4
  it requires a harsher punishment than, but is indistinguishable

  from, first degree assault – extreme indifference.1 We disagree.

              A.   Standard of Review and Applicable Law

¶ 13   We review de novo the constitutionality of a statute. Dean v.

  People, 2016 CO 14, ¶ 8. A statute is presumed to be

  constitutional, and the challenging party bears a heavy burden to

  demonstrate its unconstitutionality. Id.

¶ 14   “When two criminal statutes prescribe different penalties for

  identical conduct, a defendant is denied equal protection under the

  laws if he is convicted under the harsher statute.” People v. Griego,

  2018 CO 5, ¶ 35. “Similarly, when separate statutes prescribe

  different penalties for what ostensibly might be different acts but

  offer no intelligent standard for distinguishing between and among

  these acts, those statutes deny equal protection under the law.” Id.




  1 The United States Supreme Court has rejected this argument
  under the United States Constitution. United States v. Batchelder,
  442 U.S. 114, 125 (1979). But the Colorado Supreme Court has
  held that this claim is cognizable under the equal protection
  guarantees of the Colorado Constitution. People v. Marcy, 628 P.2d
  69 (Colo. 1981). Although Colorado’s constitution does not include
  an equal protection clause, the Colorado Supreme Court has
  “construe[d] the due process clause of the Colorado Constitution to
  imply a similar guarantee.” Dean v. People, 2016 CO 14, ¶ 11.

                                    5
  Distinctions between the two offenses “must turn on ‘reasonably

  intelligible standards of criminal culpability,’ and any definition of a

  crime must be ‘sufficiently coherent and discrete that a person of

  average intelligence can reasonably distinguish it from conduct

  proscribed by other offenses.’” Id. at ¶ 36 (quoting People v. Marcy,

  628 P.2d 69, 80-81 (Colo. 1981)).

¶ 15   A person commits second degree murder if “the person

  knowingly causes the death of a person.” § 18-3-103(1), C.R.S.

  2019. To satisfy the “knowingly” requirement, the person must be

  aware that his or her conduct is “practically certain” to cause the

  death of another person. § 18-1-501(6), C.R.S. 2019.

¶ 16   A person commits first degree assault - extreme indifference if

  that person

       (1)   “[u]nder circumstances manifesting extreme indifference

             to the value of human life,”

       (2)   “knowingly engages in conduct which creates a grave risk

             of death to another person,” and

       (3)   “thereby causes serious bodily injury to any person.”

  § 18-3-202(1)(c), C.R.S. 2019.




                                      6
¶ 17        An attempt occurs when a person “acting with the kind of

  culpability otherwise required for commission of [the] offense . . .

  engages in conduct constituting a substantial step toward the

  commission of the offense.” § 18-2-101(1), C.R.S. 2019.

       B.     Attempted Second Degree Murder Is Distinguishable from
                Attempted First Degree Assault - Extreme Indifference

¶ 18        Looking to the plain language of the statutes, we conclude that

  they do not proscribe the same conduct.

¶ 19        Attempted second degree murder requires a substantial step

  toward causing death, while attempted first degree assault –

  extreme indifference requires only a substantial step toward

  causing serious bodily injury. § 18-2-101(1); § 18-3-103; § 18-3-

  202(1)(c).

¶ 20        People v. Castro, 657 P.2d 932, 940-41 (Colo. 1983), overruled

  on other grounds by West v. People, 2015 CO 5, ¶¶ 29, 64, 70,

  highlights the importance of this distinction. In that case, the

  supreme court considered whether the alleged overlap between the

  crimes of attempted first degree extreme indifference murder and

  first degree assault violated equal protection guarantees. Id. The

  court concluded the conduct proscribed by the statutes was



                                        7
  distinguishable, in part because attempted murder requires “a

  substantial step towards the causation of another’s death,” and first

  degree assault does not. Id. at 941.

¶ 21   The same distinction applies here when we compare attempted

  second degree murder and attempted first degree assault – extreme

  in-difference: only one requires a substantial step toward the

  causation of another’s death. Therefore, the statutes do not

  proscribe the same conduct, and the equal protection claim fails.

¶ 22   Even though this analysis is sufficient to reject Ornelas-

  Licano’s equal protection argument, we briefly address his

  contention that Marcy, 628 P.2d at 78, requires a different result.

¶ 23   Attempted second degree murder requires conduct practically

  certain to result in death, while attempted first degree assault –

  extreme indifference requires conduct that creates a grave risk of

  death. §§ 18-3-103, -202(1)(c). Ornelas-Licano argues that, under

  Marcy, 628 P.2d at 78, these standards proscribe the same

  conduct. But Marcy is distinguishable. Moreover, Marcy was

  superseded by statute, Ch. 212, sec. 4, § 18-3-102, 1981 Colo.

  Sess. Laws 973, as recognized in People v. Jefferson, 748 P.2d 1223,

  1223-24 (Colo. 1988).


                                    8
¶ 24   In Marcy, 628 P.2d at 79-80, the court held that first degree

  murder – extreme indifference was indistinguishable from the lesser

  offense of second degree murder for equal protection purposes, in

  part because the conduct proscribed by the greater offense (conduct

  practically certain to cause death) necessarily included the conduct

  proscribed by the lesser offense (conduct creating a grave risk of

  death).2

¶ 25   In this case, we are faced with the converse. And we conclude

  that, while conduct practically certain to cause death necessarily

  includes conduct creating a grave risk of death, conduct creating a

  grave risk of death does not necessarily include conduct practically

  certain to cause death.

¶ 26   People v. Rubio, 222 P.3d 355 (Colo. App. 2009), illustrates

  this distinction well, and we follow its reasoning here. In that case,

  the defendant “used an AK-47 assault rifle to shoot repeatedly at an

  empty car parked outside a Denver residence” following a dispute

  with a woman inside the residence. Id. at 358. His “wild shots blew



  2 Montoya v. People, 2017 CO 40, relied on this reasoning in People
  v. Marcy, 628 P.2d 69, 78 (Colo. 1981), to make a similar
  observation and is, therefore, distinguishable for the same reasons.

                                    9
  holes not only in the car but also in two nearby residences,”

  injuring two girls. Id. He was convicted of multiple counts of

  attempted extreme indifference murder. Id.

¶ 27   On appeal, the division “reject[ed] defendant’s contention that

  the prosecution [had to] prove he knew his actions were ‘practically

  certain’ to cause death,” concluding that the prosecutor needed only

  to prove that the defendant “engaged in depraved conduct that in

  fact created a grave risk of death.” Id. at 359. So, while the Rubio

  defendant’s actions created a grave risk of harm, they were not

  practically certain to result in death. Conduct practically certain to

  result in death requires a greater likelihood of the negative

  outcome, and the identified negative outcome is more severe,

  justifying the greater punishment for that conduct.

¶ 28   For these reasons, we conclude that the conduct proscribed by

  the second degree murder statute is reasonably distinguishable

  from that proscribed by the first degree assault – extreme

  indifference statute. It, therefore, follows that Ornelas-Licano’s

  attempted second degree murder conviction does not violate equal

  protection guarantees.




                                    10
       III.    The Officer’s Testimony Interpreting the Shape of the Bullet
                 Hole in the Windshield and Evidence of the Windshield
                          Experiment Were Improperly Admitted

¶ 29          Ornelas-Licano next contends that the trial court abused its

  discretion by admitting (1) testimony from Inspector Daniel Gilliam,

  the prosecution’s expert, that, based on his experience and the

  windshield experiment he had conducted, the elliptical shape of the

  bullet hole was more consistent with a shot fired from shoulder

  height than with a shot fired at the stick shift level; and (2) evidence

  of the results of the windshield experiment. We agree.

                        A.   Additional Factual Background

¶ 30          Approximately ten months before trial, Inspector Gilliam,

  along with the detective assigned to the case, inspected the bullet

  hole in the front windshield of Ornelas-Licano’s truck. Based on

  the elliptical shape of the hole, Inspector Gilliam hypothesized that

  the shot had been fired from a “normal” shooting position (i.e.,

  shoulder height) and not from near the stick shift (which would be

  consistent with an accidental discharge).

¶ 31          To test his hypothesis, Inspector Gilliam developed an

  experiment. He obtained two new windshields that were the same

  type as the one in Ornelas-Licano’s truck. He fired Ornelas-


                                         11
  Licano’s gun through one of the windshields at approximately the

  same angle as a shot fired from the level of the truck’s stick shift.

  He then fired the gun through the other windshield at

  approximately the same angle as a shoulder-height shot. From

  these two data points, he opined that the “basic shape” of the bullet

  hole from the shoulder-height test shot was the “same” as the shape

  of the bullet hole in Ornelas-Licano’s windshield.

¶ 32   The People endorsed Inspector Gilliam as an expert witness.

  The evening before he was scheduled to testify, Ornelas-Licano

  objected to his qualifications and requested a hearing pursuant to

  People v. Shreck, 22 P.3d 68 (Colo. 2001). The following morning,

  before the jury was called to the courtroom to begin the day, the

  trial court conducted a Shreck hearing.

¶ 33   At the Shreck hearing, Inspector Gilliam testified about his

  training and experience, as well as the windshield test he had

  performed. There was no dispute that Inspector Gilliam was an

  abundantly qualified firearms expert. He testified that he

           has worked with firearms for thirty-six years;

           was a member of the SWAT team for six years, which

             included “heavy firearms training”;

                                    12
           is a firearm and toolmark examiner; and

           shoots guns on an almost daily basis.

¶ 34   Inspector Gilliam also testified that the experiment he

  performed — the windshield test — was based on “the science of

  terminal ballistics.” Terminal ballistics, according to Inspector

  Gilliam, is the study of “how th[e] bullet reacts [with] whatever

  target it strikes.” Inspector Gilliam’s training and experience in

  terminal ballistics focused on three specific areas. First, because

  he “investigate[s] crime scenes and do[es] autopsies,” he routinely

  sees “what a bullet does upon impact” with various barriers,

  including human tissue, glass, walls, and cinderblock. Second, as

  a sniper, he “studied . . . very closely” what bullets “reacted best”

  through various barriers, including glass. Third, also based on his

  experience as a sniper, he studied how the trajectory of a bullet

  fired through glass would change based on the type of glass and

  angle of impact.

¶ 35   None of this training or experience, however, focused on the

  relationship between the angle of a bullet’s impact and the shape of

  the resulting hole. Indeed, on cross-examination during the Shreck

  hearing, Inspector Gilliam testified as follows:

                                     13
             Q. . . . But you were not being trained on the
             appearance of bullet holes in glass based on
             different firing locations, correct?

             A. No. It was just an observation that every
             time we shot glass, we would look at the holes
             and so we knew which angles we had shot at
             and we could see the shape of the hole,
             whether it be glass, tempered glass, or
             laminated.

             Q. Okay. And so your observations of the
             bullet holes in laminated glass, that’s not really
             based on specialized training as much as it is
             anecdotal experience, true?

             A. True. And that was in the effect of what we
             were accomplishing.

  (Emphasis added.)

¶ 36   Near the close of the Shreck hearing, Inspector Gilliam said

  that the opinion he would offer at trial, based on his observations

  and the windshield experiment, would be that the gun “was

  probably held at a shoulder height and shot straight . . . towards

  the windshield.”

¶ 37   The nature of Ornelas-Licano’s objection to Inspector Gilliam’s

  testimony was not that he wasn’t a firearms expert. Indeed,

  everyone agreed he was. Instead, Ornelas-Licano’s objection was

  that Inspector Gilliam’s methodology wasn’t reliable and that he

  wasn’t qualified in the relevant field of terminal ballistics —

                                     14
  specifically, in determining the angle of impact of a bullet from the

  shape of a bullet hole.

¶ 38   The trial court disagreed, ruling that Inspector Gillam would

  be permitted to testify as an expert. With respect to reliability, the

  court determined, “The defense has argued that the scientific

  principles involved here are unreliable. I don’t agree. I mean,

  ballistics, as described by the witness, the three aspects of it, is not

  unreliable scientific evidence.”

¶ 39   And with respect to the witness’s qualifications, the court

  found:

             The Court finds he is qualified. There’s a lot of
             ways that an expert may be qualified. It does
             not necessarily require that you have a physics
             degree. It does not -- it is knowledge, skill,
             experience, training, or education. This
             witness has a lot of experience. He has some
             training that is, if not precisely on this issue,
             certainly related to this issue, 40 hours of
             training that included some firing through
             glass and so forth.

  (Emphasis added.)

¶ 40   Inspector Gilliam then testified as an expert in front of the

  jury. He testified about the windshield test, and photographs of the

  test bullet holes and the actual bullet hole were shown to the jury.



                                     15
  Inspector Gilliam ultimately opined that the shot that pierced the

  truck’s windshield came “[f]rom closer to the natural shooting

  position,” and not from near the stick shift.

                 B.    Preservation and Legal Principles

¶ 41   The Attorney General concedes, and we agree, that Ornelas-

  Licano preserved his objection to Inspector Gilliam offering his

  expert opinion or testifying regarding the windshield experiment.

¶ 42   “The trial court has broad discretion to determine the

  admissibility of expert testimony.” Golob v. People, 180 P.3d 1006,

  1011 (Colo. 2008). “We will not overturn its decision unless it is

  ‘manifestly erroneous.’” Id. (quoting People v. Ramirez, 155 P.3d

  371, 380 (Colo. 2007)).

¶ 43   CRE 702 and CRE 403 govern the admissibility of all expert

  testimony in this jurisdiction. Kutzly v. People, 2019 CO 55, ¶ 10;

  Ruibal v. People, 2018 CO 93, ¶ 12. Under CRE 702, “[i]f scientific,

  technical, or other specialized knowledge will assist the trier of fact

  to understand the evidence or to determine a fact in issue, a

  witness qualified as an expert by knowledge, skill, experience,

  training, or education, may testify thereto in the form of an opinion

  or otherwise.” The expert testimony must be reliable and relevant,


                                     16
  and its probative value must not be substantially outweighed by

  any of the countervailing considerations listed in CRE 403. Kutzly,

  ¶ 10. “Determining if expert testimony is reasonably reliable

  requires considering the totality of the circumstances surrounding

  the proposed expert testimony and is not contingent on any specific

  list of factors.” Id. at ¶ 12 (“[C]ertain factors — such as whether the

  technique has been tested, whether it has been subjected to peer

  review and publication, whether it has been generally accepted, its

  known or potential rate of error, and the existence and maintenance

  of standards controlling its operation — will be crucial in some

  cases but inapposite in others.”). And “a trial court’s reliability

  determination should consider whether the witness is qualified as

  an expert regarding the proposed testimony.” Id.

¶ 44   Though CRE 702 and Fed. R. Evid. 702 differ in some

  respects, case law interpreting both rules emphasizes that the

  principles and methodology underlying expert testimony must be

  reliable. E.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-58




                                     17
(1999);3 Ruibal, ¶¶ 12-16. Accordingly, analysis under Fed. R. Evid.

702 informs our analysis here.

          In the typical case, the proponent invites the
          expert to describe a general technique or
          theory and then apply to the technique or
          theory to the specific facts of the case. In
          essence, the balance of the expert’s testimony
          is a syllogism: The major premise is the
          validity of the expert’s general theory or
          technique, the minor premise is the case
          specific data, and the application of major to
          minor yields a conclusion relevant to the
          merits of the case. . . .

          ....

          . . . [When an] expert is making an inferential
          claim, a foundation merely showing the
          expert’s experience is inadequate. The judge
          should insist on a foundation demonstrating
          that the expert’s technique . . . “works”; that
          is, it enables the expert to accurately make the
          determination as to which he or she proposes
          to testify. The foundation must include a
          showing of the results when the technique was
          used on prior occasions. Do the outcomes
          demonstrate a connection between facts A and
          B? Neither the expert’s personal voucher nor
          general acceptance in the field nor even long-
          term, repeated use of the theory suffices.




3Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), served as one
of the bases for the amendments to Fed. R. Evid. 702 that
differentiate it from CRE 702. See Fed. R. Evid. 702 advisory
committee’s note to 2000 amendments.

                                 18
  1 McCormick on Evidence § 13 (Kenneth S. Broun ed., 7th ed. 2013)

  (footnote omitted).

                              C.    Analysis

¶ 45   The underlying premise of both Inspector Gilliam’s opinion

  testimony and the windshield test is that there is a nonrandom

  correlation between the shape of a bullet hole in a windshield and

  the angle of impact of the bullet. If there is no such correlation,

  meaning that it is a random occurrence that a particular shape of

  bullet hole is caused by a particular angle of impact, neither

  Inspector Gilliam’s testimony nor the windshield test has any

  probative value. Ornelas-Licano challenged both (1) the

  qualifications of Inspector Gilliam to render his opinion and (2) the

  reliability of the methodology he used to reach his opinion. We

  conclude that the trial court abused its discretion by permitting

  Inspector Gilliam to testify as an expert on the relationship between

  the shape of a bullet hole and where the shot came from, as well as

  the results of his windshield test.

¶ 46   Aside from Inspector Gilliam’s own hypothesis, the record is

  devoid of any showing that the shape of a bullet hole in a

  windshield is demonstrative or indicative of the angle at which the


                                    19
  bullet struck the glass. Inspector Gilliam purported to be able to

  apply a technique to determine, based on the shape of a bullet hole,

  where the bullet came from, but there was no showing that the

  technique “works.” See McCormick on Evidence § 13.

¶ 47   The prosecutor presented no evidence, either through

  Inspector Gilliam or otherwise, that anyone other than Inspector

  Gilliam himself had previously analyzed the relationship between

  the shape of a bullet hole in laminated glass and the angle of

  impact. No evidence was presented that the existence of such a

  relationship had been subject to peer review or was scientifically

  sound or generally accepted. Estate of Ford v. Eicher, 250 P.3d 262,

  267 (Colo. 2011); Ramirez, 155 P.3d at 378-79. Inspector Gilliam

  never testified that he or anyone else had conducted this type of

  analysis before, much less described the results from when this

  technique had been applied in the past.4



  4 When asked during the Shreck hearing whether he had “ever done
  a test like this before,” Inspector Gilliam responded, “If I have, I
  don’t recall.” At trial, he was asked “would it be fair to say that this
  is the first time that you have conducted a test in order to
  determine the angle of impact of a windshield -- angle of impact of a
  bullet going through a windshield?” To that question, he
  responded, “It is.”

                                     20
¶ 48      While Inspector Gilliam testified that he had extensive

  experience in shooting through various windshields, indeed had

  done so more than one hundred times, all of that experience was in

  the context of determining the effect the windshield had on the

  bullet and its trajectory after it passed through the glass, not to

  analyze the relationship between the angle of impact and the shape

  of the bullet hole.5




  5   At trial, Inspector Gilliam testified as follows:

               Q. . . . You talked about the training that you
               did with the SWAT group regarding shooting
               through glass. Do you recall that?

               A. I do.

               Q. And the primary focus of that training was
               teaching an individual how to shoot through
               glass and what happens to a bullet when it
               hits glass; is that fair to say?

               A. Correct.

               ....

               Q. . . . But no part of that training was devoted
               to studying bullet holes to determine an angle
               of impact?

               A. No.

                                        21
¶ 49   In response to the question, “In your training and experience,

  what does an elliptical hole indicate?” Inspector Gilliam testified

  that “in firearms or bloodstain, it indicates that it’s been deposited

  at an angle.” Similarly, in a report that wasn’t offered or presented

  to the jury, but was received and considered by the court during the

  Shreck hearing, Inspector Gilliam stated that “[f]rom previous

  experience and testing of shots through a windshield, an elliptical

  hole indicate[s] that the bullet has struck the windshield at an

  angle other than perpendicular.”

¶ 50   These statements are insufficient to establish reliability under

  CRE 702. Inspector Gilliam did not describe the methodology

  underlying the “testing of shots through a windshield,” the purpose

  of that testing, the analysis conducted, or the results of that testing

  beyond his conclusion that shots fired at an angle produce elliptical

  bullet holes. And the statements do nothing to establish that he or

  anyone else can reliably apply his theory to interpret the shape of

  the bullet hole in this case.




                                     22
¶ 51   The absence of that foundational testimony is fatal to the

  admission of this testimony.6 Nothing supported Inspector

  Gilliam’s opinion or the implicit reliability of the experiment other

  than his own “bare assertions.” Ramirez, 155 P.3d at 379; see also

  Fed. R. Evid. 702 advisory committee’s note to 2000 amendments

  (“The trial court’s gatekeeping function requires more than simply

  ‘taking the expert’s word for it.’”).

¶ 52   Colorado case law further supports this conclusion. In Brooks

  v. People, 975 P.2d 1105 (Colo. 1999), the court considered

  whether, under CRE 702 and CRE 403, to admit testimony from a

  police dog handler that the dog had identified the defendant as the

  person who had left the tracks from the scene of the crime. Before

  this testimony could be admitted, the court required a showing that

  the dog was “of a breed characterized by acute power of scent,” the

  dog had been “trained to follow a track by scent,” the dog had been



  6 We do not address whether this type of expert testimony or the
  windshield test may be admissible under CRE 702 and CRE 403
  with greater record support. If it is potentially admissible, we do
  not address what specific showing must be made to support its
  admission. The trial court has wide discretion to make such
  determinations regarding the admission of expert testimony. Golob
  v. People, 180 P.3d 1006, 1011 (Colo. 2008).

                                      23
  “found by experience to be reliable in pursuing human tracks,” the

  dog had been “placed on the trail where the [defendant] was known

  to have been,” and the “tracking efforts took place within a

  reasonable time, given the abilities of the animal.” Id. at 1114.

¶ 53   In short, the court required an extensive foundation to support

  the prosecutor’s claim that the dog was capable of identifying a

  perpetrator by scent and that the dog had reliably done so in this

  case. Here, we have no showing, beyond Inspector Gilliam’s own

  self-vouching, that someone can analyze the shape of a bullet hole

  to determine where the shot came from or that he reliably applied

  that technique in this case.

¶ 54   Similarly, the Colorado Supreme Court has excluded, under

  CRE 702 and CRE 403, expert testimony of a detective describing

  the profile of a drug courier and concluding that the defendant was

  a drug courier. Salcedo v. People, 999 P.2d 833 (Colo. 2000). The

  court concluded that this testimony was inadmissible because of

  the “lack of evidence indicating that [the detective] utilized an

  objective, widely recognized profile” and the “lack of evidence . . .

  indicating that conformity to [the detective’s] drug courier profile is

  a reliable indicator of guilt.” Id. at 839. In this case, there is no


                                     24
  showing that the expert’s method is “widely recognized” or

  “objective” or that it can reliably determine the angle of impact.

¶ 55    And more recently, in Ruibal, 2018 CO 93, the Colorado

  Supreme Court excluded expert testimony based on the theory of

  “overkill” that the assailant in that case had an emotional

  connection with the victim. The court stated that “the record was

  virtually devoid of support[] concerning the reliability of the

  scientific principles underlying the theory and interpretation of

  ‘overkill.’” Id. at ¶ 15.

              The witness relied on a single treatise as
              support for the theory of “overkill,” which even
              he did not accept as generally authoritative,
              and which, in any event, defined “overkill” far
              too narrowly . . . to support the essential
              inference, drawn by the expert in this case, of
              an emotional relationship between the victim
              and killer. Similarly, although the witness
              testified that he had performed many
              autopsies himself and knew “who confessed to
              doing what,” he failed to offer even anecdotal,
              much less empirical, evidence supporting his
              conclusion that beatings like the one in this
              case were likely committed by someone with
              an emotional connection to the victim. Finally,
              neither the appellate courts of this jurisdiction
              nor those of any other jurisdiction have yet
              accepted as reliable the theory or
              interpretation of “overkill” advanced by the
              witness.



                                     25
  Id. (footnote omitted).

¶ 56   In sum, the Colorado Supreme Court has consistently required

  more than the expert’s own assertions to support the required

  finding that the expert’s underlying theory is reliable. That showing

  was not made in this case.7 Cf. United States v. Frazier, 387 F.3d

  1244, 1265 (11th Cir. 2004) (concluding that because the putative

  expert “was relying solely or primarily on his experience, it

  remained the burden of the proponent of this testimony to explain

  how that experience led to the conclusion he reached, why that

  experience was a sufficient basis for the opinion, and just how that

  experience was reliably applied to the facts of the case”).




  7 Though not relied on by either party, we note that People v.
  Caldwell, 43 P.3d 663, 667 (Colo. App. 2001), does not support a
  different result. In that case, the division observed that “[n]o
  special expertise is required to look at the hole made by the bullet
  and realize that it followed a straight-line path.” Id. In Caldwell, a
  former police officer used string to track the paths of bullets
  through a car and testified about their trajectories on that basis.
  Id. There, the evidence established multiple points along the
  bullets’ paths, which the witness used to establish their trajectories.
  Here, the evidence established only one point in the bullet’s path —
  the hole in the windshield. The testimony in Caldwell was based on
  the bullets’ paths, not the shape of the bullet holes. Accordingly,
  Caldwell does not inform our analysis.

                                    26
¶ 57   The Sixth Circuit has developed a useful framework for

  evaluating the reliability of an expert’s opinion, explaining that

  there are a number of “[r]ed flags that caution against certifying an

  expert.” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521,

  527 (6th Cir. 2012). These red flags include (1) “reliance on

  anecdotal evidence”; (2) “improper extrapolation”; (3) “failure to

  consider other possible causes”; (4) “lack of testing”;

  (5) “subjectivity”; and (6) that “a purported expert’s opinion was

  prepared solely for litigation.” Id. (first citing Best v. Lowe’s Home

  Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009); then citing Johnson v.

  Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007)).

¶ 58   Each of these red flags, to one degree or another, is present

  here. For example, Inspector Gilliam’s hypothesis regarding the

  relationship between the angle of impact and the shape of the bullet

  hole is based on anecdotal observations incidental to his training

  and experience as a sniper. Further, his conclusion is subjective

  (i.e., the “similarity” of the shapes of various bullet holes) and is

  extrapolated from two data points, which were recorded during a

  test developed specifically for this litigation. The prevalence of these

  red flags further supports our conclusion that it was an abuse of


                                     27
  discretion for the trial court to permit Inspector Gilliam to testify as

  an expert in the relationship between the shape of a bullet hole and

  the angle of the bullet’s impact.

¶ 59   Finally, even if the prosecutor had introduced only the results

  of the windshield experiment through lay testimony, without any

  lay or expert opinions, those results would still be inadmissible. Cf.

  People v. Wilkerson, 114 P.3d 874, 876-77 (Colo. 2005) (“Even

  though a general area of scientific knowledge is determined to be

  reliable, if the results of a scientific test or comparison are not self-

  evident, the test itself lacks relevance unless there is also reliable

  expert interpretation of its results.”). Under CRE 403, if the

  probative value of any evidence is substantially outweighed by the

  dangers of unfair prejudice and misleading the jury, the evidence

  must be excluded. This evidence, on this record, is unfairly

  prejudicial and misleading because it supports the prosecutor’s

  theory of the case, even though there is nothing in the record to

  show that anything but randomness accounted for any similarity

  between the actual bullet hole and the hole created by the shoulder-

  height test shot.




                                      28
                    IV.   The Error Was Not Harmless

¶ 60   Unless it implicates the defendant’s constitutional rights, an

  error in the admission of expert testimony requires reversal only

  when it “substantially influence[d] the verdict” or “affect[ed] the

  fairness of the trial proceedings.” Ruibal, ¶ 17.

¶ 61   Ornelas-Licano urges that the error implicated his

  constitutional rights and, therefore, we must apply the

  constitutional harmless error standard. We do not reach the

  question of whether the constitutional harmless error standard

  applies because we conclude that the error is reversible under the

  more stringent nonconstitutional harmless error standard.

¶ 62   Attempted second degree murder is a serious crime, and

  Ornelas-Licano faced a lengthy prison sentence if convicted. To

  obtain a conviction, the prosecutor had to prove beyond a

  reasonable doubt that Ornelas-Licano knowingly engaged in

  conduct that was a substantial step toward causing the death of the

  officer in the vehicle at the intersection. To make this case, the

  prosecutor introduced two main types of evidence. First, the

  prosecutor elicited expert testimony and introduced exhibits related

  to the windshield experiment to show that Ornelas-Licano fired the


                                     29
  gun from a “natural shooting position.” Second, the prosecutor

  elicited testimony from a jailhouse witness who claimed that, before

  the incident, Ornelas-Licano had told him that he intended to have

  a “shootout” with police rather than be taken into custody.

¶ 63   Disregarding the testimony of Inspector Gilliam regarding the

  shape of the bullet hole and evidence of the windshield test, the

  strongest support for the prosecutor’s theory that Ornelas-Licano

  pointed the gun at the officer’s vehicle and fired was the testimony

  of the jailhouse witness. But direct and cross-examination of the

  jailhouse witness undermined his credibility in several ways. At the

  time of trial, the jailhouse witness was in custody and subject to

  deportation proceedings. He testified that he had been paid as a

  police informant eleven times before this case, he was facing a

  charge for false reporting to police, and his deportation hearing

  would be held the day after his testimony in this case.

¶ 64   Moreover, “[t]here are special concerns attendant to law

  enforcement expert testimony.” United States v. Rodriguez, 125 F.

  Supp. 3d 1216, 1238 (D.N.M. 2015) (citing United States v. Medina–

  Copete, 757 F.3d 1092 (10th Cir. 2014)). For example, “there is

  something qualitatively different about law enforcement expertise


                                    30
  from other forms of expertise” because “[l]aw enforcement

  officers . . . are experts in whodunit, and there is a danger that a

  jury will perceive their area of expertise as solving crimes and

  determining guilt or innocence.” Id. at 1252; see also Frazier, 387

  F.3d at 1263 (“[E]xpert testimony may be assigned talismanic

  significance in the eyes of lay jurors, and, therefore, the district

  courts must take care to weigh the value of such evidence against

  its potential to mislead or confuse.”).

¶ 65   In short, given that there was nothing showing that Inspector

  Gilliam’s testimony or the windshield experiment was reliable, the

  importance of the testimony to a central disputed issue, and the

  weakness of the other evidence supporting the prosecutor’s theory

  of the case, the admission of Inspector Gilliam’s expert testimony

  and the windshield evidence substantially affected the verdict and

  undermined the fairness of the trial. Accordingly, reversal is

  required.

¶ 66   Because we reverse on these grounds, we do not address

  Ornelas-Licano’s other arguments related to Inspector Gilliam’s

  testimony and windshield experiment evidence.




                                     31
                            V.   Conclusion

¶ 67   Ornelas-Licano’s conviction for attempted second degree

  murder is reversed, and the case is remanded for a new trial on that

  charge. Because the issue has not been briefed, we do not address

  the question of whether either party may seek a lesser included

  offense instruction as to the charge of attempted first degree assault

  – extreme indifference. We do not disturb Ornelas-Licano's other

  convictions.

       JUSTICE MARTINEZ concurs.

       JUDGER BERGER concurs in part and dissents in part.




                                   32
        JUDGE BERGER, concurring in part and dissenting in part.

¶ 68    I agree with the majority’s rejection of Jose Ornelas-Licano’s

  equal protection claim. Although a close question, I cannot agree

  with the majority’s analysis and reversal based on the admission of

  expert testimony. Therefore, I respectfully dissent.

   I.   Admission of Expert Testimony Interpreting the Shape of the
        Bullet Hole in the Windshield and Evidence of the Windshield
                 Experiment Was Not an Abuse of Discretion

¶ 69    Ornelas-Licano contends that the trial court abused its

  discretion by admitting testimony from the prosecution expert that,

  based on his experience and the windshield experiment, the

  elliptical shape of the bullet hole in the truck’s windshield was more

  consistent with a shot fired from shoulder height than with a shot

  fired from the level of the stick shift.

¶ 70    Ornelas-Licano lodges multiple separate, but related,

  challenges. First, he claims that the expert was not qualified.

  Second, he claims that the opinions were not reliable under CRE

  702. Third, he claims that the evidence was “misleading” and not

  helpful to the jury because there were an infinite number of

  possible shooting positions. Finally, he claims that the trial court’s

  findings were insufficient under CRE 702. I reject each of these


                                      33
  contentions in turn and conclude that the trial court did not abuse

  its discretion by admitting this expert testimony.

  A.    The Expert’s Qualifications and the Reliability of His Opinions

¶ 71   “The trial court has broad discretion to determine the

  admissibility of expert testimony.” Golob v. People, 180 P.3d 1006,

  1011 (Colo. 2008). “We will not overturn its decision unless it is

  ‘manifestly erroneous.’” Id. (quoting People v. Ramirez, 155 P.3d

  371, 380 (Colo. 2007)). “This deference reflects the superior

  opportunity of the trial judge to gauge the competence of the expert

  and the extent to which his opinion would be helpful to the jury.”

  Id. (quoting Ramirez, 155 P.3d at 380).

¶ 72   “If scientific, technical, or other specialized knowledge will

  assist the trier of fact to understand the evidence or to determine a

  fact in issue, a witness qualified as an expert by knowledge, skill,

  experience, training, or education, may testify thereto in the form of

  an opinion or otherwise.” CRE 702. To determine whether expert

  testimony is admissible under CRE 702, the court must make

  determinations as to (1) the “reliability of the scientific principles”;

  (2) the “qualifications of the witness”; and (3) the “usefulness of the

  testimony to the jury.” People v. Shreck, 22 P.3d 68, 70 (Colo.


                                     34
  2001). “The ‘crucial question’ trial courts must answer when

  determining the admissibility of proffered expert testimony is: ‘On

  this subject can a jury from this person receive appreciable help?’”

  People v. Williams, 790 P.2d 796, 798 (Colo. 1990) (quoting 3 Jack

  B. Weinstein and Margaret A. Berger, Weinstein’s Evidence

  § 702[01], at 702-7 to 702-8 (1988)).

¶ 73   Ornelas-Licano first contends that the expert was not qualified

  to testify, based on the shape of the bullet hole, what angle the shot

  came from. He further contends that any such testimony was

  unreliable. Because these contentions are related, I address them

  together.

¶ 74   Ornelas-Licano correctly points out that the expert had no

  training or education in analyzing bullet holes to determine a

  bullet’s flight path or reconstructing shooting scenes generally. In

  addition, he correctly states that the expert presented no scientific

  literature or other evidence supporting the reliability of his bullet

  hole analysis.

¶ 75   CRE 702, however, allows an expert to testify based on his or

  her experience. The inquiry under CRE 702 “should be broad in

  nature and consider the totality of the circumstances of each


                                     35
  specific case.” Shreck, 22 P.3d at 70. There is no exclusive list of

  factors that a court must consider. Id.

¶ 76   As foundation for his opinions, the expert testified that he had

  extensive experience in shooting through vehicle windshields in

  connection with his training as a police sniper. I recognize that the

  primary purpose of those shootings was to determine the effect of

  an intervening windshield on a bullet’s trajectory after it passed

  through the glass. But the expert also testified that he had

  repeatedly observed a relationship between the angle of impact of a

  bullet on the windshield and the shape of the hole made by the

  bullet.

¶ 77   In response to the question, “In your training and experience,

  what does an elliptical hole indicate?” the officer testified that “in

  firearms or bloodstain, it indicates that it’s been deposited at an

  angle.” Similarly, in a report that was not offered or presented to

  the jury, but was received and considered by the court during the

  Shreck hearing, the officer stated that “[f]rom previous experience

  and testing of shots through a windshield, an elliptical hole

  indicate[s] that the bullet has struck the windshield at an angle

  other than perpendicular.”


                                     36
¶ 78   On these facts, I believe that the trial court acted within its

  discretion in concluding that the officer was qualified to testify

  regarding his conclusions based on the shape of the bullet hole in

  the windshield. A person who has shot through a hundred

  windshields and has observed the relationship between the angle of

  impact and the shape of the bullet holes meets the qualifications

  requirements of CRE 702.

¶ 79   The closer and more difficult question is whether the

  foundational testimony was sufficient to meet the reliability

  requirement of CRE 702. I emphasize that the question before us is

  not whether we appellate judges would have admitted the

  testimony, had we acted as the trial judge. People v. Rhea, 2014

  COA 60, ¶ 58. Instead, the question is whether the trial court

  abused its discretion by admitting the expert testimony on this

  evidentiary record. Id.

¶ 80   I conclude, after applying this deferential abuse of discretion

  standard, that the trial court did not abuse its discretion in finding

  that the expert testimony was sufficiently reliable under CRE 702.

  Contrary to the majority’s analysis, cases where the Colorado




                                    37
  Supreme Court has held experience-based expert testimony

  inadmissible do not dictate a different result.

¶ 81   In Ruibal v. People, the supreme court held that it was error

  for the trial court to admit expert testimony from a forensic

  pathologist because (1) the trial court did not make any findings

  concerning the reliability of the principles underlying the expert’s

  theory and (2) the record was devoid of support as to the theory’s

  reliability. 2018 CO 93, ¶ 15. The expert in that case had

  experience in conducting autopsies and had on many occasions

  learned, at trial, about an assailant’s relationship to his or her

  victim. Id. He testified that the victim’s injuries in Ruibal

  demonstrated “overkill,” a term describing multiple injuries on one

  area of the body, which indicates that the assailant had an

  emotional attachment to the victim. Id. at ¶ 9.

¶ 82   Both justifications for excluding the expert opinion in Ruibal

  are absent from this case. The trial court found that the expert’s

  theory was sufficiently reliable. In an oral ruling, the court stated,

  “The defense has argued that the scientific principles involved here

  are unreliable. I don’t agree.” The record supported this finding.

  The expert testified that he had shot through over one hundred


                                    38
  windshields, and that his experiences identified a relationship

  between the angle of impact of a bullet on the windshield and the

  shape of the hole left by the bullet.

¶ 83   The results of the expert’s experiment buttressed his

  experienced-based observations such that the trial court could

  properly find his bullet-hole theory reliable. For the experiment, the

  expert obtained two new windshields that were the same type as the

  one in Ornelas-Licano’s truck. He fired Ornelas-Licano’s gun

  through one of the windshields at approximately the same angle as

  a shot fired from the level of the truck’s stick shift. He then fired

  the gun through the second windshield at approximately the same

  angle as a shoulder-height shot. Photographs of the two test firings

  demonstrated that the shot made from the gear shift caused a

  circular bullet hole, while the test shot made from shoulder height

  caused a more elliptical hole. This kind of data was absent from

  the record in Ruibal, where the expert gave no “anecdotal, much

  less empirical, evidence supporting his conclusion.” Id. at ¶ 15.

¶ 84   Salcedo v. People, 999 P.2d 833 (Colo. 2000), is similarly

  distinguishable. In that case, the supreme court held that

  testimony that a defendant matches a “drug courier profile” is not


                                     39
  an admissible expert opinion. Id. at 837. There, a police detective

  was qualified as an expert in “narcotics interviews,” and, based on a

  “loose profile” of behaviors and characteristics that the detective

  had constructed based on prior experience with drug couriers, the

  detective testified that he believed that Salcedo was a drug courier.

  Id. at 835 –36.

¶ 85   The supreme court held that this testimony was inadmissible

  on reliability grounds because “application of the drug courier

  profile depends substantially on a subjective, if not intuitive,

  judgment that a person’s behavior and characteristics warrant

  further investigation,” and because “[the expert] based his opinion

  of Salcedo’s guilt on a subjective assessment of the ‘totality of the

  circumstances’ rather than on an articulable combination of

  behaviors and characteristics in an objective drug courier profile.”

  Id. at 838 –39 (emphasis added).

¶ 86   Although both the expert in Salcedo and the expert in this

  case developed their theories based on prior experience, those

  experiences were different in kind. The expert’s theory in this case

  was not based on his subjective gut feelings, but rather on his

  objective, definable, and simple observations: there is a relationship


                                     40
  between a bullet’s angle of impact and the shape of hole it leaves in

  glass. Instead of analyzing many factors and variables under “the

  totality of the circumstances,” id. at 839, the expert here identified a

  more limited number of variables pertinent to his theory and then

  explained a precise result — namely, that when a bullet strikes

  glass at a nonperpendicular angle, there will be an elliptical hole.

  This is in stark contrast to the inadmissible expert opinion in

  Salcedo, which was tantamount to “I think defendant was a drug

  courier because I’ve seen drug couriers before, and he looked like

  one.” In sum, while the expert’s opinion in Salcedo was

  indeterminate and subjective, id., the detective’s opinion here was

  determinate and objective.

¶ 87   The officer testified as an expert about his theory of the case

  based on his experience, which was validated by the (albeit limited)

  results of his experiment with the windshields. While no scientific

  evidence was presented regarding the physics of why or how the

  angle of impact related to the shape of the bullet hole, as I read the

  supreme court’s opinion in Shreck, such scientific evidence (which

  may entail peer review and other confirmations of reliability) is not

  always required. Shreck, 22 P.3d at 77-78.


                                    41
¶ 88   Our function is limited to determining whether a sufficient

  showing of reliability was made. It is the jury’s function to

  determine, based on cross-examination, the presentation of

  rebutting expert evidence, and all other relevant factors, whether to

  credit that testimony. COLJI-Crim. E:06 (2019); Hampton v. People,

  171 Colo. 153, 165, 465 P.2d 394, 400 (1970).

¶ 89   I note that the defense expert, who indisputably was qualified

  as a ballistics expert, did not dispute the central assumption of the

  prosecution expert — that the angle of impact bears a causal

  relationship with the shape of the bullet hole. Instead, the defense

  expert contended that the prosecution expert’s testimony was wrong

  (or unreliable) because there were “too many unknowns and too

  many variables in this particular case.” He testified that it was

  impossible, based on the shape of the bullet hole and the

  windshield experiment, to reach any specific conclusions about the

  location of the gun when the shot was fired.

¶ 90   I am mindful that it is unfair to hold a defendant’s diligence in

  calling a defense expert against the defendant, and I agree that the

  testimony of the later-called defense expert should not bear on the

  question of the admissibility under CRE 702 of the prosecution


                                    42
  expert’s opinions.8 Nevertheless, following a number of cases

  decided by this court, the fact that a defense expert addressed and

  disagreed with the prosecution expert’s opinions is properly

  considered for two purposes. See People v. Shanks, 2019 COA 160,

  ¶ 41; Schuessler v. Wolter, 2012 COA 86, ¶ 73; People v. Masters, 33

  P.3d 1191, 1202 (Colo. App. 2001), aff’d, 58 P.3d 979 (Colo. 2002).

¶ 91   First, particularly when, as here, the defense expert does not

  contest the central premise or causal analysis of the prosecution

  expert, the risk that the prosecution expert’s opinions were “junk

  science,” and that the defendant was convicted on the basis of such

  junk science, is substantially ameliorated. Second, when the

  defense presents a rebutting expert, the jury has more tools to

  evaluate whether, in the end, the prosecution expert’s opinions are

  worthy of belief. (Of course, we have no way of knowing whether

  the prosecution expert’s opinions had any bearing on the jury’s

  verdict.)



  8 The defense expert did not testify at the Shreck hearing conducted
  regarding the admissibility of the prosecution expert’s testimony;
  and therefore his testimony did not bear on the trial court’s
  determination that the prosecution expert’s testimony was
  admissible under CRE 702.

                                   43
¶ 92    For these reasons, I conclude that the trial court did not abuse

  its discretion by admitting this testimony.

       B.     The Expert’s Opinions, Based on Two Potential Shooting
            Positions, Were Helpful to the Jury and Were Not Misleading

¶ 93    Ornelas-Licano next argues that the expert’s testimony was

  misleading and not helpful to the jury because it only addressed

  two possible shooting positions, and there were many other

  possibilities. The central issue in this case is whether Ornelas-

  Licano accidentally shot through the windshield or did so

  deliberately in an attempt to kill the officer.

¶ 94    Testimony by a qualified expert giving reliable opinions

  regarding the relationship between the angle of impact and the

  shape of resulting bullet holes through a windshield could help the

  jury decide whether to credit Ornelas-Licano’s account of the

  incident or the prosecutor’s theory. Therefore, based on my

  determination that the expert was qualified and that his opinions

  were sufficiently reliable to be presented to the jury, I reject

  Ornelas-Licano’s argument that the expert’s opinions could not

  have been helpful to the jury.




                                     44
¶ 95        Additionally, the expert’s testimony did not preclude the jury’s

  consideration of other possible shooting positions. Indeed, defense

  counsel emphasized these other possibilities in opening and closing.

  Therefore, the testimony was not misleading.

       C.     The Trial Court’s Findings Under CRE 702 Were Sufficient

¶ 96        Finally, Ornelas-Licano argues that the trial court “failed to

  make sufficient findings to support its rejection of [his] reliability

  challenge.” “[U]nder CRE 702, a trial court must issue specific

  findings as it applies the CRE 702 and 403 analyses.” Shreck, 22

  P.3d at 83. Contrary to Ornelas-Licano’s argument, the trial court

  paused the trial to hold a Shreck hearing and concluded that the

  proposed expert testimony was reliable. Moreover, as both the

  majority’s and my analysis of the admissibility of the expert

  opinions demonstrates, the trial court’s findings were sufficient for

  us to perform our appellate function. Tatum v. Basin Res., Inc., 141

  P.3d 863, 869 (Colo. App. 2005).

¶ 97        For these reasons, I would hold that the trial court did not

  abuse its discretion by admitting the prosecution expert’s opinions

  analyzing the shape of the bullet hole in the windshield.




                                         45
        D.   The Results of the Windshield Experiment Were Properly
                                    Admitted

¶ 98     Ornelas-Licano separately challenges the expert’s

  qualifications to conduct the windshield experiment and the

  admission of the results of the experiment.9

¶ 99     As Ornelas-Licano correctly points out, the expert had no

  training or education related to conducting this specific kind of

  experiment. He had never done this before, and he cited no

  scientific literature or other support for this methodology.

¶ 100    However, the expert had participated in sniper trainings

  involving shooting through glass at various angles and analyzing

  the bullets’ trajectories. Further, he explained in detail the

  methodology behind the experiment, including why certain angles

  were chosen and how those angles were recreated. I conclude that




  9 It is not clear that that windshield experiment or its results are
  expert testimony subject to CRE 702. Compare People v. Caldwell,
  43 P.3d 663, 667-68 (Colo. App. 2001) (police officer determined
  paths of bullets through a car using a string and properly testified
  as a lay witness about the bullets’ trajectories), with People v.
  Stewart, 55 P.3d 107, 123-25 (Colo. 2002) (police officer’s accident
  reconstruction testimony was improperly admitted as lay
  testimony). Neither party addresses this question. Because both
  parties analyze these contentions using CRE 702 principles, I do
  the same.

                                    46
  this foundation was sufficient for the admission of the results of the

  experiment.

¶ 101   Ornelas-Licano also argues that the experiment did not

  account for other variables in play during the shooting. But as I

  discussed above, “challenges to . . . the expert’s application of

  variables [go] to the weight of the evidence, not its admissibility.”

  Shanks, ¶ 40. “Such concerns ‘are adequately addressed by

  vigorous cross-examination, presentation of contrary evidence, and

  careful instruction on the burden of proof.’” Id. at ¶ 12 (quoting

  People v. Campbell, 2018 COA 5, ¶ 42).

¶ 102   Ornelas-Licano next contends that videos documenting the

  windshield experiment were unduly prejudicial because in those

  videos the gun was fired toward the viewer. I disagree. While the

  video camera was in front of the windshield, the gun itself was not

  visible because it was being fired at an angle to the windshield (as if

  from the driver’s side). Each video simply shows a bullet hole

  appearing in the windshield and does not “suggest a decision on an

  improper basis.” People v. Clark, 2015 COA 44, ¶ 18 (quoting

  People v. James, 117 P.3d 91, 93-94 (Colo. App. 2004)). Thus, this




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  testimony was not “unduly prejudicial” under CRE 403. People v.

  Palacios, 2018 COA 6M, ¶ 20.

¶ 103   Further, for the reasons stated in the previous section, the

  experiment results and resulting testimony could have been helpful

  to the jury and were not misleading.

¶ 104   On these facts, the trial court did not abuse its discretion by

  admitting the windshield experiment results and the expert

  testimony relating to the experiment.

                             II.   Conclusion

¶ 105   For these reasons, I would affirm the judgment of conviction.




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