Peo v. Romero

• Court: Colorado Court of Appeals
• Decided: November 10, 2021
• Docket: 18CA2456
• Status: Unknown

Opinion

18CA2456 Peo v Romero 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2456

Adams County District Court No. 17CR161

Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Arnulfo Romero JR,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE GRAHAM*

Lipinsky and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Patrick J. Mulligan, Alternate Defense Counsel, 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. 2021.

1

¶ 1 G.S. and A.R. accused defendant, Arnulfo Romero — G.S.’s

stepfather and A.R.’s father — of sexually assaulting them over a

period of years while they were minors and adults.

¶ 2 The prosecution charged Romero with one count of sexual

assault on a child, one count of sexual assault on a child as a part

of a pattern of abuse, two counts of sexual assault on a child by one

in a position of trust as a part of a pattern of abuse, three counts of

sexual assault on a child by one in a position of trust, two counts of

sexual assault, and one count of aggravated incest.

¶ 3 After Romero’s first trial resulted in a mistrial, he was retried,

and a jury found him guilty as charged.

¶ 4 The trial court sentenced Romero to an aggregate term of

thirty-three years to life in the custody of the Department of

Corrections.

¶ 5 On appeal, Romero contends that (1) the trial court erred by

admitting voicemails that he left on A.R.’s phone and A.R.’s

testimony that he told her he took a photo of her vagina while she

was sleeping; (2) the trial court abused its discretion by allowing a

forensic interviewer to vouch for the credibility of G.S. and A.R.; (3)

the evidence admitted at trial was not sufficient to support his

2

convictions; (4) the prosecution committed misconduct in its

examination of A.R. and during its rebuttal closing argument; and

(5) the cumulative effect of the alleged errors prejudiced him and

requires reversal. Because we disagree with all of Romero’s

contentions, we affirm the judgment of conviction.

I. The Voicemails and A.R.’s Testimony

¶ 6 We first consider whether the trial court erred by admitting (1)

voicemails that Romero left on A.R.’s phone and (2) A.R.’s testimony

that Romero told her that he took a photo of her vagina while she

was sleeping. We discern no reversible error.

A. Standard of Review

¶ 7 When an evidentiary issue is preserved at trial, we review the

trial court’s decision on that issue for an abuse of discretion. See

People v. Jimenez, 217 P.3d 841, 846 (Colo. App. 2008). “A court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law.” People v.

Grant, 2021 COA 53, ¶ 12 (citations omitted).

¶ 8 But we will not reverse a conviction based on a trial error,

such as the erroneous admission of evidence, if that error is

harmless. See Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000).

3

An error is harmless if we can say with fair assurance that in light

of the entire record of the trial, the error did not substantially

influence the verdict or impair the fairness of the trial. See People

v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989).

¶ 9 When the issue is not preserved, we review for plain error. See

Hagos v. People, 2012 CO 63, ¶ 14. An error is plain if it is obvious

and substantial, and so undermines the fundamental fairness of

the trial as to cast serious doubt on the reliability of the judgment

of conviction. See id. To show plain error, the defendant must

establish that an error occurred, and that it was “so clear cut and

so obvious” that a trial judge should have intervened sua sponte to

avoid it without the benefit of an objection. People v. Conyac, 2014

COA 8M, ¶ 54. An error is obvious when it contravenes a clear

statutory command, a well-settled legal principle, or Colorado case

law. People v. Pollard, 2013 COA 31M, ¶ 40.

B. Voicemails

¶ 10 Romero contends that the trial court abused its discretion by

admitting the voicemails because (1) their probative value was

substantially outweighed by the danger of unfair prejudice under

4

CRE 403 and (2) they constituted inadmissible other acts evidence

under CRE 404(b). We disagree.

¶ 11 Before trial, Romero filed a motion to exclude recordings of

voicemails that he left on A.R.’s phone the evening after the last

alleged sexual assault, when she failed to return home after going

out with her boyfriend. He argued that the voicemails were “highly

inflammatory” because they included “sexist terms as well as

threats to kill or otherwise harm the complaining witness and her

boyfriend.” He also noted that in his first trial, “The court properly

made a finding that the probative value of the voicemails is

substantially outweighed by the danger of unfair prejudice.”

¶ 12 The trial court denied Romero’s motion. In so doing, the court

clarified its ruling in the first trial: “Based upon defense strategy

and questioning of the witnesses in the first trial, the Court found

that the evidence was relevant and that the probative value was not

substantially outweighed by the danger of unfair prejudice.” The

court indicated that, at the first trial, it considered whether, under

Frasco v. People, 165 P.3d 701 (Colo. 2007), and DeBella v. People,

233 P.3d 664 (Colo. 2010), repeated or unfettered access to the

5

voicemails could prejudice Romero, and limited the admission of the

voicemails on that basis:

Here, to clarify the record of the [prior] Court’s

analysis, the Court concluded that despite the

relevance of the [voicemails] in the first trial,

the Court found that repeated jury access to

the [voicemails] very well could result in the

jury ascribing undue weight to the evidence

and thus the potential for the probative value

of that evidence being substantially

outweighed by the danger of unfair prejudice.

¶ 13 The trial court then stated:

Although the Court has denied the motion, the

Court will order that the [voicemails] will not

be mentioned in opening statement by the

[prosecution]. Further, the Court will hear in

camera argument prior to the admission of the

[voicemails]. The Court, depending on the

evidence introduced at trial, impeachment of

credibility of witnesses, and other factors must

make an independent evaluation under CRE

401 and 403 in the context of the upcoming

trial.

¶ 14 At trial, the prosecution argued that Romero manipulated and

exerted “power and control” over G.S. and A.R., through violence

and threats, so that he could sexually assault them and prevent

them from disclosing the sexual assaults. It argued that “Romero

was a man who drove to possess his daughters, who exerted power

and control over their lives by sexually assaulting them time after

6

time. . . . These sexual assaults occurred because [Romero] was

jealous, because he was possessive.”

¶ 15 A.R. testified that Romero sexually assaulted her “hundreds”

of times, often forcing her to engage in intercourse, from the time

she was ten years old until she was eighteen years old. She

testified that the sexual assaults were violent and that in some

cases, Romero choked her and caused visible injuries. She testified

that during one sexual assault, Romero choked her so severely that

she had a bloody eye, which remained red for many days following

the assault.

¶ 16 She also testified that during the “father-daughter dance at

[her] quinceanera,” Romero told her that “no matter what [she was]

always going to be his little girl and no one can ever have [her].

That [she was] only his.” She testified that before one sexual

assault, Romero told her that “no matter what, that [she was]

always going to be there at the house with him.”

¶ 17 A.R. testified that she did not initially disclose the sexual

assaults because she “was afraid because [Romero] threatened that

he would hurt [her] and [her] family.”

7

¶ 18 A.R. then testified that on the morning of January 13, 2017,

she texted Romero to ask him if she could go to the movies with her

boyfriend that evening. She testified that after everyone had left the

family home except for her, Romero returned to the home and told

her that she could not go to the movies with her boyfriend because

he knew “exactly what [her boyfriend] wants from [her].” She

testified that Romero sexually assaulted her; he pinned her down

on the bed, took off her clothes, and forced his penis into her vagina

while covering her mouth and choking her. A.R. testified that this

was the last time Romero sexually assaulted her.

¶ 19 A.R. testified that she left with her boyfriend for the movies

that evening. But she testified that she and her boyfriend got in an

argument, so she had her boyfriend drive her to her sister’s house

because she “didn’t want to go home anymore because of the

incident that happened in the morning.”

¶ 20 A.R. also testified that while she was with her boyfriend on the

evening of January 13, 2017, her parents were calling her, she did

not answer their phone calls, and Romero left voicemails on her

phone. The prosecution presented A.R. with Exhibit 14, which A.R.

agreed was a “fair and accurate depiction of voicemails that were

8

left for [her] by [Romero].” The prosecution moved to admit Exhibit

14, defense counsel objected, and the trial court admitted the

exhibit.

¶ 21 G.S. and A.R.’s mother also testified about the events of

January 13, 2017. During her testimony, the prosecution

presented her with Exhibit 12. The mother agreed that Exhibit 12

was “a text message conversation between [her] and [Romero]

beginning on the morning of January 13th, 2017, and going into

the following day.”

¶ 22 The trial court admitted Exhibit 12 into evidence without

objection. In Exhibit 12, Romero refers to A.R. in a text message as

a “dumb a[**]” and a “little b[****].”

¶ 23 During the testimony of a police detective who investigated the

case, the prosecution moved to publish Exhibit 14 for the jury. But

defense counsel renewed the previous objection.

¶ 24 The trial court found that the voicemails were relevant but

ordered that the prosecution could only play them one time to

prevent any undue prejudice to Romero:

All right. I guess what I want to note is unless

the recording is vastly edited from what I

9

heard at the last trial, I will probably let them

listen to it in here, but not in the jury room.

I think my order articulated what my concerns

are. It is relevant, but it is based upon all

testimony in the case so far. It is relevant, but

I think repeatedly listening to it may result in

undue prejudice to [Romero]. So it is one and

done.

¶ 25 Exhibit 14 was then played for the jury. It contains a series of

voicemails with a total length of approximately one minute. In the

voicemails, Romero calls A.R. a “b[****]” several times. He also

threatens to “press[] charges” against her boyfriend, to “beat the

f[***]” out of her boyfriend, and to “f[*** her] up.” Romero then tells

A.R. to answer her phone and asks her, “This is what you [are]

f[***]in’ choosin’?” and “You’re eighteen, where the f[***] are you

gonna go?”

1. CRE 403

¶ 26 In general, all relevant evidence is admissible. See CRE 402;

see also People v. Brown, 2014 COA 155M-2, ¶ 22 (“The Colorado

Rules of Evidence strongly favor the admission of relevant

evidence.”). Evidence is “relevant” when it has “any tendency to

make the existence of any fact that is of consequence to the

10

determination of the action more probable or less probable than it

would be without the evidence.” CRE 401.

¶ 27 But even relevant evidence may be excluded when its

probative value is substantially outweighed by the danger of unfair

prejudice. See CRE 403. Unfair prejudice “refers to the tendency of

the proposed evidence to adversely affect the objecting party’s

position by injecting considerations extraneous to the merits of the

lawsuit, such as the jury’s bias, sympathy, anger or shock.” People

v. Dist. Ct., 869 P.2d 1281, 1286 (Colo. 1994) (quoting People v.

Goree, 349 N.W.2d 220, 225 (Mich. Ct. App. 1984)).

¶ 28 In reviewing whether a trial court abused its discretion in

admitting evidence under CRE 403, we afford the evidence its

maximum probative value and its minimum danger of unfair

prejudice. See People v. Greenlee, 200 P.3d 363, 367 (Colo. 2009).

¶ 29 We conclude that the trial court did not abuse its discretion by

admitting the voicemails under CRE 403. See Grant, ¶ 12; Jimenez,

217 P.3d at 846.

¶ 30 The probative value of the voicemails was high. See Greenlee,

200 P.3d at 367. The voicemails were probative of Romero’s volatile

and controlling relationship with A.R., in which he used threats to

11

isolate A.R. from her boyfriend. See CRE 401-402; Greenlee, 200

P.3d at 367. They were also probative of Romero’s potential motive

to sexually assault A.R. on the morning of January 13 in that they

showed (1) Romero’s desire to maintain possession of A.R. by

keeping her away from her boyfriend and (2) his jealousy at A.R.

“choosin’” her boyfriend. See CRE 401-402; Greenlee, 200 P.3d at

367.

¶ 31 But the danger of unfair prejudice from the voicemails was

very low. See Greenlee, 200 P.3d at 367. The voicemails were a

very small part of the prosecution’s case. They were only

approximately one minute long in total, and they were played for

the jury only once.

¶ 32 The voicemails also did not “inject[] considerations extraneous

to the merits” of the case. See Dist. Ct., 869 P.2d at 1286.

Although, in the voicemails, Romero refers to A.R. as a “b[****],”

Romero referred to A.R. in the same way in Exhibit 12 — which

Romero did not challenge either at trial or on appeal. Likewise,

although, in the voicemails, Romero threatened to hurt A.R. and her

boyfriend, A.R. had already testified, without objection, that Romero

threatened to hurt her and her family.

12

¶ 33 Accordingly, the trial court did not abuse its discretion by

finding that the probative value of the voicemails was not

substantially outweighed by their danger of unfair prejudice. See

CRE 403; Greenlee, 200 P.3d at 367; Grant, ¶ 12; Jimenez, 217

P.3d at 846.

¶ 34 But even if the voicemails were not admissible under CRE 403,

their admission would be harmless. See Salcedo, 999 P.2d at 841.

As noted above, the voicemails were very short and were largely

cumulative of other properly admitted evidence that showed that

Romero called A.R. a “b[****]” and threatened to hurt her and her

family. See People v. Jaramillo, 183 P.3d 665, 669 (Colo. App. 2008)

(concluding that error in admitting testimony was harmless when

testimony was cumulative of other testimony not challenged on

appeal). And, although Romero’s very brief statements in the

voicemails were unfavorable, these statements were “vastly

overshadowed” by the evidence of his numerous, violent sexual

assaults on A.R. People v. Herron, 251 P.3d 1190, 1198 (Colo. App.

2010). Accordingly, we can say with fair assurance that the

erroneous admission of the voicemails would not have substantially

13

influenced the verdict or impaired the fairness of the trial. See

Gaffney, 769 P.2d at 1088.

2. Other Act Evidence

¶ 35 Because Romero did not object to the voicemails at trial on the

basis that they were inadmissible under CRE 404(b) as other act

evidence, we review for plain error. See Hagos, ¶ 14; People v.

Acosta, 2014 COA 82, ¶ 76 (“[A]n issue is unpreserved for review

when, among other things, (1) no objection or request was made in

the trial court; or (2) an objection or request was made in the trial

court, but on grounds different from those raised on appeal.”

(quoting People v. Ujaama, 2012 COA 36, ¶ 37)).

¶ 36 “Evidence of any other crime, wrong, or act is not admissible

to prove a person’s character in order to show that on a particular

occasion the person acted in conformity with the character.” CRE

404(b)(1).

¶ 37 But res gestae evidence is “not subject to the general rule that

excludes evidence” of other crimes, wrongs, or acts. People v.

Quintana, 882 P.2d 1366, 1373 (Colo. 1994); see People v.

Czemerynski, 786 P.2d 1100, 1109 (Colo. 1990) (concluding that

res gestae evidence need not meet the procedural requirements of

14

CRE 404(b)); People v. Griffiths, 251 P.3d 462, 467 (Colo. App. 2010)

(concluding that a trial court can admit res gestae evidence without

giving the jury a limiting instruction). “Res gestae evidence is

‘matter incidental to the main fact and explanatory of it, including

acts and words which are so closely connected therewith as to

constitute a part of the transaction, and without knowledge of

which the main fact might not be properly understood.’” People v.

Rollins, 892 P.2d 866, 872-73 (Colo. 1995) (quoting Woertman v.

People, 804 P.2d 188, 190 n.3 (Colo. 1991)).

¶ 38 Res gestae evidence is “linked in time and circumstances with

the charged crime, or forms an integral and natural part of an

account of the crime, or is necessary to complete the story of the

crime for the jury.” Quintana, 882 P.2d at 1373 (quoting United

States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). It is

“[e]vidence of criminal conduct that occurs contemporaneously with

or is part and parcel of the crime charged.” Callis v. People, 692

P.2d 1045, 1051 n.9 (Colo. 1984); see Jaramillo, 183 P.3d at 667-68

(concluding that in a case in which the defendant was charged with

assaulting his wife, the wife’s testimony that the defendant had

been accusing her of infidelity and was extremely jealous, extremely

15

possessive, “very angry,” and “very accusative” during their

marriage was admissible as res gestae).

¶ 39 We acknowledge that the supreme court is currently

considering whether the res gestae doctrine should be abolished in

Colorado. See People v. Rojas, 2020 COA 61 (cert. granted Oct. 6,

2020). Nonetheless, unless and until the supreme court abolishes

the doctrine, it remains good law in this state. See People v. Smith,

183 P.3d 726, 729 (Colo. App. 2008) (holding that the court of

appeals is bound by supreme court precedent).

¶ 40 We conclude that the trial court did not err, plainly or

otherwise, by admitting the voicemails because they were

admissible as res gestae of the sexual assault on the morning of

January 13. See Hagos, ¶ 14; Rollins, 892 P.2d at 872-73;

Quintana, 882 P.2d at 1373; Callis, 692 P.2d at 1051 n.9. The

voicemails were linked in time with the sexual assault on the

morning of January 13 because Romero left them on A.R.’s phone

on the evening of January 13. See Quintana, 882 P.2d at 1373.

They were also linked in circumstances with this sexual assault

because that morning, Romero told A.R. she could not see her

boyfriend and, in the voicemails, Romero threatened A.R. after she

16

went out with her boyfriend. See id. And the voicemails were “part

and parcel” of the sexual assault on the morning of January 13

because, as discussed above, they explained Romero’s volatile,

controlling, and threatening relationship with A.R. and his potential

motive to sexually assault A.R. that morning. Callis, 692 P.2d at

1051 n.9; see Rollins, 892 P.2d at 872-73; Jaramillo, 183 P.3d at

667-68.

¶ 41 Romero’s reliance on People v. Yachik, 2020 COA 100, for the

proposition that the voicemails were not res gestae of the sexual

assaults against A.R. is misplaced. In Yachik, the prosecution

charged the defendant with two counts of sexual assault on a child

by one in a position of trust as part of a pattern of abuse against his

daughter. See Yachik, ¶¶ 1, 3-4. The trial court admitted, as res

gestae of the “family dynamics” and “background” of the charged

crimes, evidence that the defendant physically abused his daughter

“almost daily,” including making her eat hot sauce concoctions,

kicking her, beating her, choking her, and spraying her eyes with

pepper spray. Id. at ¶¶ 1, 14-16. A division of our court concluded

that the trial court abused its discretion by admitting this evidence

as res gestae because the physical abuse was not “inextricably

17

intertwined” with the sexual assaults. Id. at ¶ 25 (quoting People v.

Coney, 98 P.3d 930, 933 (Colo. App. 2004)). The court noted that

the daughter did not mention the physical abuse when testifying

about the sexual assaults, that she denied that she feared physical

abuse if she disclosed the sexual assaults, that she did not mention

the physical abuse when asked why she did not initially report the

sexual assaults, and that “there [was] no evidence [the daughter]

was physically abused in connection with the sexual assaults.” Id.

at ¶¶ 26-29.

¶ 42 But, unlike in Yachik, here, the voicemails were intertwined

with the sexual assault on the morning of January 13. There was

evidence — primarily A.R.’s testimony — that Romero used violent

sexual assaults and threats of violence as a means of controlling

and isolating A.R. The voicemails illustrated his volatile,

controlling, and threatening relationship with A.R. and, in turn,

Romero’s potential motive to sexually assault A.R. on the morning

of January 13. See Rollins, 892 P.2d at 872-73; Callis, 692 P.2d at

1051 n.9; Jaramillo, 183 P.3d at 667-68.

¶ 43 But even if the trial court’s admission of the voicemails was

error, the error would not be plain. See Hagos, ¶ 14. As discussed

18

above, the voicemails were very brief and were largely cumulative of

other evidence in the case. See People v. Arzabala, 2012 COA 99,

¶ 80 (concluding that improperly admitted evidence does not

amount to plain error when the evidence was cumulative). The

voicemails were also vastly overshadowed by the evidence of

Romero’s numerous, violent sexual assaults on A.R. See Herron,

251 P.3d at 1198. Accordingly, any error in admitting the

voicemails would not have so undermined the fundamental fairness

of the trial as to cast serious doubt on the reliability of Romero’s

judgment of conviction. See Hagos, ¶ 14.

C. A.R.’s Testimony

¶ 44 Romero contends that the trial court committed plain error by

admitting A.R.’s testimony that he told her that he took a photo of

her vagina while she was sleeping because this testimony was

evidence of another uncharged crime — sexual exploitation of a

child — and was therefore inadmissible under CRE 404(b). We are

not persuaded.

¶ 45 Because Romero did not object to this testimony, we review for

plain error. See Hagos, ¶ 14.

19

¶ 46 At trial, during A.R.’s testimony about the sexual assaults, the

following colloquy took place between the prosecution and A.R.:

[Prosecution]: . . . I want to ask you some

questions about a conversation that you – if

you had a conversation with [Romero] about

taking photographs of you while these sex

assaults would occur.

Did you ever have a conversation with

[Romero] about that?

[A.R.]: Yes.

Q: Tell me specifically what [Romero] said to

you.

A: Well, him and my mom were arguing about

some pictures on his phone. And then after

they finished arguing, he came downstairs to

my room, and into my room, and he said he

almost got caught with the pictures. I asked

him what pictures. And he said he had took

pictures of me when I was asleep of my vagina.

Q: During that conversation did he say

anything to you about telling your mom about

the photos?

A: He said not to say anything because she

thought that it was photos of her.

Q: You never actually saw the photos or

anything on his phone that he was talking to

you about, right?

A: No.

20

Defense counsel did not object to this testimony.

¶ 47 We conclude that the trial court did not err, plainly or

otherwise, in admitting the challenged testimony of A.R. because it

was res gestae of the charged sexual assaults against her. See id.;

Rollins, 892 P.2d at 872-73; Quintana, 882 P.2d at 1373; Callis, 692

P.2d at 1051 n.9. The conversation about the sexually explicit

picture was linked in time and circumstances with, and was part

and parcel of, the charged sexual assaults against A.R. because it

occurred in the time period during which Romero was regularly

sexually assaulting A.R. and reflected the ongoing, sexually abusive

relationship between Romero and A.R. See Rollins, 892 P.2d at

872-73; Quintana, 882 P.2d at 1373; Callis, 692 P.2d at 1051 n.9;

Jaramillo, 183 P.3d at 667-68.

¶ 48 But even if the trial court’s admission of A.R.’s testimony

about the photo was error, the error would not be plain. See Hagos,

¶ 14. There was no evidence that Romero actually took the photo,

and no such photo was admitted at trial. The testimony was a

small part of the prosecution’s case and was vastly overshadowed

by the evidence of Romero’s numerous, violent sexual assaults on

A.R. See Herron, 251 P.3d at 1198. Accordingly, any error in

21

admitting the challenged testimony would not have so undermined

the fundamental fairness of the trial as to cast serious doubt on the

reliability of Romero’s judgment of conviction. See Hagos, ¶ 14.

II. Vouching

¶ 49 We next consider whether the trial court erred by allowing a

forensic interviewer — who had interviewed both A.R. and G.S. — to

vouch for their credibility. We conclude it did not.

¶ 50 Because Romero did not object to the forensic interviewer’s

testimony on the basis that it vouched for the credibility of G.S. and

A.R., we review for plain error. See Hagos, ¶ 14.

¶ 51 A witness is prohibited from testifying that another person was

telling the truth on a particular occasion. Venalonzo v. People,

2017 CO 9, ¶ 32 (citing People v. Wittrein, 221 P.3d 1076, 1081

(Colo. 2009)); see also CRE 608(a). “The danger in admitting such

testimony lies in the possibility that it will improperly invade the

province of the fact-finder.” Venalonzo, ¶ 32. But a witness may

give his or her personal opinion on another person’s demeanor,

state of mind, or physical behavior “if it is based on a rational

perception and personal observations.” See Acosta, ¶¶ 62-64; see

People v. Farley, 712 P.2d 1116, 1119 (Colo. App. 1985) (“A lay

22

witness may testify in the form of opinions or inferences so long as

the opinion or inference expressed is rationally based on his

perceptions and is helpful to the jury in understanding the

testimony or in determining a fact in issue.” (citing CRE 701)), aff’d,

746 P.2d 956 (Colo. 1987).

¶ 52 At trial, the prosecution called a forensic interviewer to testify.

The forensic interviewer was qualified as an expert in forensic

interviewing.

¶ 53 The forensic interviewer testified that she interviewed both

G.S. and A.R. The prosecution asked the forensic interviewer to

describe their demeanor during the interviews:

[Prosecution]: What was [G.S.’s] demeanor like

as she went through the forensic interview

with you?

[Forensic Interviewer]: I would say she was

emotional. She was very forthright and quite

talkative. But tearful at times. And just kind

of more of a free-flowing kind of information to

questions. She seemed like she was really

ready to kind of get it all out.

Q: I want to ask you some questions about

your interview with [A.R.]. Did you use the

phased approach you described for the jury

already?

A: Yes, I did.

23

Q: And the open-ended questions that you

described during the course of your interview?

A: That is correct.

Q: What was [A.R.’s] demeanor like during the

course of the interview?

A: [A.R.] was -- I would say she appeared

somewhat hesitant or concerned, somewhat

closed off.

¶ 54 Defense counsel objected, arguing that the forensic interviewer

was speculating. The trial court overruled the objection, finding

that the testimony was based upon the forensic interviewer’s

perception.

¶ 55 The forensic interviewer then testified that it took A.R. longer

to feel comfortable during the interview:

She was uncomfortable to say things. I think

it took her longer. Well, I know it took her

longer to feel comfortable in the room. I am

not sure she was 100 percent comfortable at

any time. But she did become more

communicative. And she was certainly

answering questions and fully cooperative.

But it seemed like the words came harder.

Defense counsel did not object to this testimony.

¶ 56 Video recordings of the forensic interviews of G.S. and A.R.

were not admitted into evidence or played for the jury.

24

¶ 57 We conclude that the trial court did not err, plainly or

otherwise, by allowing the challenged testimony by the forensic

interviewer. See Hagos, ¶ 14. The forensic interviewer did not

comment, either directly or indirectly, on the credibility of G.S. or

A.R. See Venalonzo, ¶ 32. Instead, the forensic interviewer’s

testimony — including her testimony that G.S. was “emotional,”

“tearful,” and “seemed like she was really ready to kind of get it all

out” and that A.R. was “hesitant” at first but was “fully cooperative”

— was limited to a description, based on her personal observations,

of G.S.’s and A.R.’s demeanors during the interviews. See Acosta,

¶¶ 62-64; see also Farley, 712 P.2d at 1119 (concluding that a

counselor’s testimony describing the victim’s demeanor was proper

where it was based on the counselor’s observations and did not

include an opinion that the counselor believed the victim).

¶ 58 Although the forensic interviewer testified that G.S. was “very

forthright” during the interview, the word “forthright” means

“without hesitation” or “lacking ambiguity.” Webster’s Third New

International Dictionary 895 (2002). It does not mean “truthful.”

Accordingly, this was a description of G.S.’s demeanor and not a

comment on her credibility. See Venalonzo, ¶ 32; Acosta, ¶¶ 62-64.

25

¶ 59 Yet, Romero contends that the forensic interviewer’s

“testimony improperly suggested to the jury that the conclusion had

already been reached that [he] had sexually assaulted [G.S.], and

that [G.S.] simply had to ‘get it all out’ in the interview.” We

disagree. The forensic interviewer did not state or imply that

Romero had sexually assaulted G.S. And, although the forensic

interviewer stated that G.S. seemed “like she was really ready to

kind of get it all out” during the interview, she did not state that “it”

was the truth or in any other way imply that G.S. was truthful

during the interview. See Farley, 712 P.2d at 1119.

¶ 60 Romero’s reliance on Venalonzo for the proposition that the

forensic interviewer in his case vouched for the credibility of G.S.

and A.R. is misplaced. In Venalonzo — a child sexual assault case

— our supreme court concluded that a forensic interviewer

improperly vouched for the credibility of the child victims when she

testified “that many of the children’s behaviors were common to

other child sex assault victims she had interviewed and testified

that some forensic interviews have led the People to drop charges

against suspects.” Venalonzo, ¶ 35. It also concluded that the

26

mother of one of the child victims improperly vouched for the child

victim’s credibility when she testified

that [the child victim] did not display any signs

that she was lying when she reported the

incident, that [the child victim] was not

sophisticated enough to make up a story about

the sexual assault, and that [the child victim]

had no reason to accuse [the defendant] unless

the incident had actually occurred.

Id. at ¶¶ 39-40.

¶ 61 But, unlike in Venalonzo, the forensic interviewer in Romero’s

case did not compare G.S.’s and A.R.’s demeanors to those of other

sexual assault victims, compare the circumstances of this case to

other cases of sexual assault, or suggest that G.S.’s and A.R.’s

demeanors indicated that they were telling the truth. Instead, the

forensic interviewer simply described G.S.’s and A.R.’s demeanors

during the interviews based on her personal observations. See

Farley, 712 P.2d at 1119; Acosta, ¶¶ 62-64.

¶ 62 Romero’s reliance on People v. Snook, 745 P.2d 647 (Colo.

1987), Tevlin v. People, 715 P.2d 338 (Colo. 1986), People v.

Cernazanu, 2015 COA 122, People v. Bridges, 2014 COA 65, and

People v. Koon, 724 P.2d 1367 (Colo. App. 1986), for the proposition

27

that the forensic interviewer vouched for the credibility of G.S. and

A.R. is also misplaced.

• In Snook, the supreme court concluded that a social worker

improperly vouched for the credibility of a child victim by

testifying that “children tend not to fabricate stories of sexual

abuse.” 745 P.2d at 648.

• In Tevlin, the supreme court concluded that a social worker

improperly vouched for the child victim by testifying that “he

believed the [child] victim was telling the truth” when the child

victim testified that the defendant “hit him with a belt and belt

buckle.” 715 P.2d at 339-40.

• In Cernazanu, a division of our court concluded that a parent

improperly vouched for the child victim by testifying that the

child victim did not display her “typical ‘lying’ behavior” when

reporting the sexual assault. Cernazanu, ¶¶ 14-16.

• In Bridges, a division concluded that a forensic interviewer

improperly vouched for the credibility of the child victims by

testifying that they “had not been coached.” Bridges, ¶¶ 12-

16.

28

• In Koon, a division concluded that a therapist vouched for the

credibility of the child victim by testifying that the child victim

had “been really truthful” with her. 724 P.2d at 1370-71.

¶ 63 But, unlike in these cases, the forensic interviewer in Romero’s

case did not testify that G.S. and A.R. had been truthful on any

particular occasion, that their demeanors during the interviews

indicated that they were not lying, or that sexual assault victims

tend not to fabricate stories of sexual assault. Again, the forensic

interviewer simply described G.S.’s and A.R.’s demeanors during

the interviews based on her personal observations. See Farley, 712

P.2d at 1119; Acosta, ¶¶ 62-64.

III. Sufficiency of the Evidence

¶ 64 We also consider whether the evidence presented at trial was

sufficient to support Romero’s convictions. We conclude that the

evidence was sufficient.

¶ 65 We review a challenge to the sufficiency of the evidence de

novo to determine whether the evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, was substantial and sufficient to

support a conclusion by a reasonable mind that the defendant is

29

guilty of the offense beyond a reasonable doubt. See Clark v.

People, 232 P.3d 1287, 1291 (Colo. 2010).

¶ 66 The “determination of the credibility of the witnesses is solely

within the province of the fact finder.” People v. McIntier, 134 P.3d

467, 471 (Colo. App. 2005). “[I]t is the fact finder’s function in a

criminal case to consider and determine what weight should be

given to all parts of the evidence and to resolve conflicts, testimonial

inconsistencies, and disputes in the evidence.” Id.

¶ 67 In our review on appeal, we “do not sit as a thirteenth juror to

determine the weight of the evidence presented to the jury.” Clark,

232 P.3d at 1293.

¶ 68 At trial, G.S. testified that Romero forced her to engage in

sexual intercourse on three separate occasions when she was

between fifteen and sixteen years old. She also testified that

Romero choked her during one sexual assault.

¶ 69 As noted above, A.R. testified that Romero sexually assaulted

her on numerous occasions, forcing her to engage in sexual

intercourse from the time she was ten years old until she was

eighteen years old.

30

¶ 70 On appeal, Romero does not contend that the trial testimony

of G.S. and A.R. — if found to be credible — was not sufficient

evidence to support his convictions. Instead, Romero contends that

G.S. and A.R. were not credible witnesses because they both

“testified under oath in prior proceedings that they had never been

assaulted by” Romero, there were “[m]ultiple significant

inconsistencies between the various accounts given” by G.S. and

A.R., and no “physical evidence of any kind was presented to

corroborate or substantiate [their] allegations.”

¶ 71 In support of his contention, Romero points to the following:

• G.S. admitted that she had previously testified under oath, in

a custody hearing, that Romero had never sexually assaulted

her or physically assaulted her.

• G.S. also testified that, while Romero had assaulted her when

she was sixteen years old, she did not tell her mother about

the alleged assaults until 2017 (when she was twenty-four

years old).

• G.S. testified that A.R. initially said “no” when she was asked

if Romero had any sexual contact with her.

31

• G.S.’s father-in-law testified that although he was a law

enforcement officer and a “mandatory reporter” of sexual

assault allegations, he did not tell anyone about G.S.’s

allegations until four years after G.S. first made the

allegations.

• A.R. testified that she first learned in June 2016 that G.S. had

accused Romero of sexual assault and that when she was

asked at that time whether Romero had ever sexually

assaulted her, she said, “No.”

• Although A.R. testified that Romero’s assaults were violent,

sometimes causing visible injuries, there were no photographs

of any of these injuries.

• A.R.’s mother testified that she considered A.R. to be a “lying

kid” and that A.R. initially denied that Romero had touched

her improperly.

• The trial court took judicial notice of A.R.’s testimony in Case

No. 16DR30333, in which A.R. testified under oath she had

never been beaten or assaulted by her mother or Romero.

• The prosecution presented no medical or physical evidence to

corroborate G.S.’s or A.R.’s allegations of sexual assault.

32

¶ 72 We conclude that the trial testimony of G.S. and A.R. was

sufficient to support Romero’s convictions. See Clark, 232 P.3d at

1291. While their testimony may have been inconsistent and may

not have been corroborated by physical evidence, it was the sole

province of the jury to determine the weight and credibility of their

testimony and to resolve any conflicts or inconsistencies in their

testimony. See McIntier, 134 P.3d at 471. We will not sit as a

thirteenth juror to determine the weight of their testimony for the

jury. See Clark, 232 P.3d at 1293.

IV. Prosecutorial Misconduct

¶ 73 We next consider whether the prosecution committed

misconduct in its examination of A.R. and during its rebuttal

closing arguments.

A. Standard of Review

¶ 74 We engage in a “two-step analysis” when we review a claim of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we must determine whether the prosecution’s

“conduct was improper based on the totality of the circumstances

and, second, whether such actions warrant reversal according to

the proper standard of review.” Id.

33

B. Examination of A.R.

¶ 75 Romero contends that the prosecution committed misconduct

in its examination of A.R. when it elicited her testimony that

Romero told her that he had taken a photo of her vagina while she

was sleeping. We disagree.

¶ 76 Because Romero did not object on this basis at trial, we review

for plain error. See Hagos, ¶ 14.

¶ 77 During its examination of A.R., the prosecution asked her if

she had “a conversation with [Romero] about taking photographs of

you while these sex assaults would occur.” A.R. responded by

describing a conversation in which Romero “said he had took

pictures of [her] when [she] was asleep of [her] vagina.”

¶ 78 The trial court admitted this testimony without objection, and

we have concluded that the trial court did not err in admitting the

testimony because it was res gestae evidence.

¶ 79 Under these circumstances, we conclude that the

prosecution’s conduct in eliciting admissible testimony was not

improper. See Wend, 235 P.3d at 1096.

34

C. Rebuttal Closing Arguments

¶ 80 Romero contends that the prosecution committed misconduct

in its rebuttal closing arguments by (1) misstating the evidence

presented at trial; (2) denigrating Romero and defense counsel; and

(3) referring to G.S. and A.R. as “girls.” We discern no reversible

error.

¶ 81 The prosecution has wide latitude during closing argument

and may “comment on the evidence admitted at trial, the

reasonable inferences that can be drawn from the evidence, and the

instructions given to the jury.” People v. Welsh, 176 P.3d 781, 788

(Colo. App. 2007); see People v. Allee, 77 P.3d 831, 837 (Colo. App.

2003) (“In closing argument, [a prosecutor] may employ rhetorical

devices and engage in oratorical embellishment and metaphorical

nuance . . . .”). But the prosecution may not misstate the evidence,

use arguments calculated to inflame the passions or prejudices of

the jury, make statements reflecting a personal opinion or personal

knowledge, or denigrate defense counsel. See People v. Gladney,

250 P.3d 762, 769 (Colo. App. 2010); People v. Walters, 148 P.3d

331, 334 (Colo. App. 2006); see also Domingo-Gomez v. People, 125

P.3d 1043, 1048 (Colo. 2005) (A “prosecutor, while free to strike

35

hard blows, is not at liberty to strike foul ones.” (quoting Wilson v.

People, 743 P.2d 415, 418 (Colo. 1987))).

¶ 82 We review a trial court’s ruling on the propriety of

prosecutorial arguments for an abuse of discretion. See People v.

Collins, 250 P.3d 668, 678 (Colo. App. 2010).

¶ 83 In reviewing whether a specific prosecutorial argument was

improper, we evaluate the specific argument in the context of the

closing argument as a whole and in light of the evidence before the

jury. See Conyac, ¶ 132. We consider the language used by the

prosecution, the context of the prosecution’s statements, the

strength of the evidence, and whether the prosecution repeated the

misconduct. See People v. Lovato, 2014 COA 113, ¶ 64.

¶ 84 And, in reviewing whether the prosecution’s rebuttal closing

argument was improper, we consider defense counsel’s “opening

salvo.” People v. Vialpando, 804 P.2d 219, 225 (Colo. App. 1990).

We afford the prosecution considerable leeway in responding to

defense counsel’s closing argument. Id.

1. Misstating the Evidence

¶ 85 Romero contends that the prosecution committed misconduct

in its rebuttal closing argument when it misstated the evidence of

36

what Romero told A.R. during the sexual assault on the morning of

January 13, 2017. We conclude that the misstatement does not

require reversal.

¶ 86 At trial, there was no evidence as to what Romero said to A.R.

while he sexually assaulted her on the morning of January 13,

2017.

¶ 87 In its rebuttal closing argument, however, the prosecution

stated:

On the 13th of January 2017, [A.R.] was going

to meet her new boyfriend. He had not been

around for a long time. And . . . Romero could

not handle it. He could not accept the fact

that she was with someone else. As he is

sexually assaulting her, he is asking her are

you doing this with your boyfriend.

¶ 88 Defense counsel then objected, arguing: “That is not in

evidence.”

¶ 89 The trial court responded to defense counsel’s objection: “The

Court will simply instruct the jury they are to rely upon their

individual and collective memories as to what the testimony is.

Closing arguments are not evidence.”

¶ 90 After closing arguments, the trial court gave the jury written

instructions, including the following: “During the trial, you received

37

all of the evidence that you may properly consider in deciding the

case. Your decision must be made by applying the rules of law that

I give you to the evidence presented at trial.”

¶ 91 We conclude that the prosecution’s misstatement of the

evidence of what Romero said to A.R. during the last sexual assault

was harmless. See Salcedo, 999 P.2d at 841. This misstatement

was an isolated comment in an otherwise proper closing argument

in which the prosecution argued the evidence demonstrated that

Romero committed the charged offenses. See People v. Ortega, 2015

COA 38, ¶ 55 (concluding that the prosecution’s comment

appealing to the jury’s concerns for public safety was harmless

because the comment “was an isolated incident in an otherwise

proper closing argument” (quoting People v. Clemons, 89 P.3d 479,

483 (Colo. App. 2003))). And we presume the jurors followed the

trial court’s instructions that they were “to rely upon their

individual and collective memories as to what the testimony [was],”

that “[c]losing arguments [were] not evidence,” and that they were to

base their decision on the law and “the evidence presented at trial.”

See People v. Rhea, 2014 COA 60, ¶ 68 (concluding that the

prosecution’s misstatement of the evidence was harmless when the

38

misstatement was isolated and the “trial court urged the jury to rely

on its memory of the evidence”); People v. Lahr, 2013 COA 57, ¶ 25

(“Absent contrary evidence, we presume that jurors follow a district

court’s instructions.”). Consequently, we can say with fair

assurance that in light of the entire record of the trial, the

misstatement did not substantially influence the verdict or impair

the fairness of the trial. See Gaffney, 769 P.2d at 1088.

2. Denigrating Defense Counsel

¶ 92 Romero also contends that in its rebuttal closing argument,

the prosecution “denigrated both [Romero] and defense counsel in

claiming that the defense had ‘manufactured’ various

inconsistencies in the testimony of the alleged victims.” We

disagree.

¶ 93 In his closing argument, defense counsel argued, “We are here

because of accusations that are inconsistent, that don’t make

sense, that are not credible, because they are not true.” Defense

counsel proceeded to discuss the inconsistencies in the victims’

testimony.

39

¶ 94 The prosecutor responded in rebuttal closing argument that

the defense had “manufactured” various inconsistencies in the

victims’ testimony:

Now, from the beginning of this trial, and in

defense’s closing argument, you heard a lot

about all of the inconsistencies that you are

going to hear in testimony. I want you to think

back throughout all of the testimony that you

heard. By and large those inconsistencies

were manufactured for trial testimony. They

did not exist.

¶ 95 Defense counsel objected, but the trial court overruled the

objection, instructing the jury that “closing arguments are not

evidence.”

¶ 96 The prosecution then specifically discussed one inconsistency

highlighted by defense counsel:

Think back to those cross-examinations.

Think back to the cross-examination of [G.S.]

The things that were highlighted, for example,

after . . . Romero sexually assaulted her for the

first time when she was 15-1/2 years old in

the Northglenn home, she went to go clean

herself up. And she was cross-examined

extensively on whether that was with a tissue,

or a piece of toilet paper, or a makeup wipe or

rag. They are trying to use word choices to tell

you that that is an inconsistency and that is

not true. Because you can also look at the

way that the girls were consistent.

40

The prosecution then reviewed the ways in which the victims’

allegations were consistent.

¶ 97 We conclude that the trial court did not abuse its discretion by

allowing the prosecution to argue that defense counsel

“manufactured” inconsistencies in the testimony of G.S. and A.R.

See Wend, 235 P.3d at 1096; Collins, 250 P.3d at 678; cf. People v.

Alemayehu, 2021 COA 69, ¶ 100 (noting that a prosecutor commits

misconduct when asserting in closing that the defendant “start[ed]

manufacturing . . . lies” because a lawyer may not use any form of

the word “lie” in characterizing a witness’s truthfulness for a jury).

In context, the prosecution’s brief comment was not intended to

denigrate defense counsel or Romero. See Conyac, ¶ 132; Lovato,

¶ 64. Instead, it was intended to counter defense counsel’s

argument about the inconsistencies in the victims’ testimony and to

focus the jury’s attention on the relevant evidence supporting the

charged offenses. See Collins, 250 P.3d at 678 (concluding that the

prosecution’s description of defense counsel’s theory of reasonable

doubt as “absurd” did not denigrate defense counsel because it

“was merely a response to defense counsel’s assertions that the jury

could not find defendant guilty beyond a reasonable doubt”); People

41

v. Perea, 126 P.3d 241, 248 (Colo. App. 2005) (concluding that the

prosecution did not denigrate defense counsel with a comment that

defense counsel “has misstated the law” because the comment was

“made as a means of focusing the jury’s attention on relevant

evidence”); Allee, 77 P.3d at 836 (concluding that it was not

improper for the prosecution to ask the jury not to be confused by

defense counsel’s tactics because the comment was intended to

draw the jury’s focus to relevant evidence rather than to denigrate

opposing counsel); Vialpando, 804 P.2d at 225.

3. “Girls”

¶ 98 Romero contends that the prosecution committed misconduct

in its rebuttal closing argument when it made “an effort to engender

sympathy” for A.R. and G.S. by referring to them as “girls.” We

disagree.

¶ 99 G.S. and A.R. were minors when the charged offenses began

and were twenty-five years old and nineteen years old at the time of

trial.

¶ 100 As noted above, during its rebuttal closing argument, the

prosecution stated, “[Y]ou can also look at the way that the girls

42

were consistent.” Defense counsel then objected “to the use of the

word girls.” The trial court overruled this objection.

¶ 101 We conclude that the trial court did not abuse its discretion by

allowing the prosecution to refer to G.S. and A.R. as “girls.” See

Wend, 235 P.3d at 1096; Collins, 250 P.3d at 678. In context, the

prosecution did not use the word “girls” to engender sympathy for

G.S. and A.R. See Conyac, ¶ 132; Lovato, ¶ 64. Instead, the

prosecution used the word “girls” as a colloquial term for G.S. and

A.R., who were minors when the charged offenses occurred and

young women at the time of trial. See Webster’s Third New

International Dictionary 959 (2002) (defining “girl” as “a female

child,” “a young unmarried woman,” or “a single or married woman

of any age”).

V. Cumulative Error

¶ 102 Romero last contends that the cumulative effect of the errors

in his case requires reversal. We disagree.

¶ 103 We must reverse a criminal conviction when “the cumulative

effect of [multiple] errors and defects substantially affected the

fairness of the trial proceedings and the integrity of the fact-finding

process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting

43

People v. Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 (1980)).

We have rejected all of Romero’s contentions of error except for one

instance of improper prosecutorial argument, which we concluded

was harmless. Thus, there is no cumulative effect in Romero’s

case. See id.

VI. Conclusion

¶ 104 The judgment of conviction is affirmed.

JUDGE LIPINSKY and JUDGE BROWN concur.