23CA1049 Peo v Torres-Fernandez 08-20-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1049 Adams County District Court No. 19CR4589 Honorable Mark Warner, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Luis Torres-Fernandez, Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FOX
J. Jones and Dunn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 20, 2026
Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Luis Torres-Fernandez, appeals his conviction for sexual assault. He challenges (1) the trial court’s use of the 2022 “reasonable doubt” model criminal jury instruction; (2) the testimony of two expert witnesses; and (3) the prosecutor’s statements during closing argument. We affirm.
I. Background
¶2 G.V-H. and Torres-Fernandez met through Facebook in 2021. After expressing mutual interest in a relationship, they exchanged phone numbers and agreed to meet for dinner. According to G.V- H., the dinner went well and the pair continued conversing via text. Torres-Fernandez suggested they go to a shooting range for their next date and sent G.V-H. pictures of his two handguns. G.V-H. told him she did not like guns and proposed that she cook him a meal instead. Torres-Fernandez agreed to this proposal and suggested that they eat and watch a movie at his house. He then asked G.V-H. to wear leggings when she came over because “women look better in leggings.”
¶3 G.V-H. “trusted [Torres-Fernandez], but not [enough] to go alone to his house.” So she brought her friend Ana Moreno. Torres-Fernandez appeared upset that G.V-H. brought Moreno, but
2
they still went into the house. Torres-Fernandez asked G.V-H. if she would like a tour, and she followed him to his bedroom. Moreno stayed in the living room.
¶4 G.V-H. testified about the following events at trial. She said that she stopped outside the bedroom door and declined Torres- Fernandez’s request to go in. He then wrapped his arms around her from behind, walked her into the bedroom, and closed the door. Shortly thereafter, he started kissing and touching G.V-H. despite her repeatedly saying “no” and “I want to leave.” Torres-Fernandez eventually pulled G.V-H.’s leggings down and pushed her onto the bed. G.V-H. noticed a handgun on the nightstand, she froze, and Torres-Fernandez vaginally penetrated her. Torres-Fernandez maintained through counsel that any sexual contact was consensual.
¶5 Moreno estimated that G.V-H. had been in the bedroom for four minutes and testified that she looked “completely bad,” was “pale,” and “didn’t seem happy” when she returned to the living room. G.V-H. described being in a dissociated state, but when she suddenly “remembered everything that had happened,” she told
3
Moreno they needed to leave. G.V-H. eventually disclosed the assault to a friend, who then reported it to the police.
¶6 The People charged Torres-Fernandez with sexual assault (causing submission against the victim’s will). § 18-3-402(1)(a), C.R.S. 2021.1 A jury convicted Torres-Fernandez as charged, and the trial court sentenced him to ninety days in the Department of Corrections’ custody and ten years to life on sex offender probation.
¶7 On appeal, Torres-Fernandez argues that (1) the trial court erred by providing the jury with a reasonable doubt instruction that impermissibly shifted and lowered the prosecution’s burden of proof; (2) the court erroneously admitted expert testimony without conducting an analysis under People v. Shreck, 22 P.3d 68 (Colo. 2001); (3) this testimony and that of a sexual assault nurse examiner (SANE) improperly bolstered G.V-H.’s credibility; and (4) the prosecutor improperly evoked the jury’s sympathy during closing argument. We reject each contention.
1 The charged conduct occurred in 2021, but the trial occurred in
2022. The sexual assault statute was amended effective July 1, 2022. See Ch. 41, sec. 1, § 183-402, 2022 Colo. Sess. Laws 214. We cite the version in effect at the time of the charged conduct.
4
II. 2022 Reasonable Doubt Instruction A. Additional Background
¶8 Before 2022, the model criminal jury instructions defined proof beyond a reasonable doubt as follows:
Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case.
It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
COLJI-Crim. E:03 (2021).
¶9 The model instruction current at the time of the 2022 trial provided as follows:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.
COLJI-Crim. E:03 (2022). The trial court gave the jury the 2022 instruction; Torres-Fernandez’s counsel did not object.
¶ 10 Torres-Fernandez now argues on appeal that the 2022 instruction did not adequately explain when a doubt is “reasonable”
5
and failed to require the jury to consider the lack of evidence in the case, thereby depriving him of his due process rights. He also contends that the instruction lowered and shifted the prosecution’s burden of proof by allowing jurors to convict if they were “firmly convinced of [his] guilt” and acquit only if there was “a real possibility that [he] is not guilty.” Divisions of this court have repeatedly rejected similar arguments, and we are not persuaded to depart from their sound analysis.
B. Standard of Review
¶ 11 “The trial court has broad discretion to formulate jury instructions as long as they are correct statements of the law.” People v. Carter, 2015 COA 24M-2, ¶ 39 (quoting People v. Oram, 217 P.3d 883, 893 (Colo. App. 2009)). We review de novo whether jury instructions accurately informed the jury of the governing law, and we review the trial court’s decision to give a particular instruction for an abuse of discretion. Id.
¶ 12 If the defendant did not object to the instruction, the issue is unpreserved and we review for plain error. See People v. Conyac, 2014 COA 8M, ¶ 53. Under this standard, the defendant bears the burden of establishing that at the time the error occurred, “it was
6
so clear cut and so obvious that a trial judge should have been able to avoid it without benefit of objection.” Id. at ¶ 54. The defendant must also establish that the error was substantial, such that it “undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the conviction.” Id.
C. Applicable Law and Analysis
¶ 13 Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” McCoy v. People, 2019 CO 44, ¶ 20 (quoting In re Winship, 397 U.S. 358, 364 (1970)). The reasonable doubt standard “provides concrete substance for the presumption of innocence,” and thus, “the court must properly instruct the jury on — and, as the fact finder, the jury must apply — the reasonable doubt standard.” Tibbels v. People, 2022 CO 1, ¶¶ 24-25 (citation omitted). While a trial court retains some flexibility in defining reasonable doubt, it must guard against defining it “in a way that allows the jury to convict on a lesser showing than due process requires.” Id. at ¶ 25.
¶ 14 Divisions of this court have recently rejected arguments like those Torres-Fernandez advances. In People v. Schlehuber, 2025
7
COA 50, ¶ 2, a division of this court held that the 2022 instruction “does not unconstitutionally lower the prosecution’s burden of proof, violate the presumption of innocence, or shift the burden of proof to the defendant.” See also People v. Melara, 2025 COA 48,
¶ 24 (concluding the 2022 instruction did not impermissibly lower the burden of proof). And in People v. Berumen, 2025 COA 93, ¶ 22, the division concluded “that the 2022 model instruction is an accurate statement of the law.” We agree with these decisions; accordingly, the trial court did not err.
III. Expert Testimony
¶ 15 Torres-Fernandez challenges the testimony of two experts. He argues that the trial court erred by (1) failing to make findings under Shreck on the relevance and reliability of a clinical psychologist’s testimony; (2) allowing hypothetical questions so closely tailored to the facts of this case that the clinical psychologist’s answers impermissibly bolstered G.V-H.’s credibility; and (3) admitting the SANE’s statistical opinion testimony that bolstered G.V-H.’s credibility. While we agree that the court should have made relevance and reliability findings on the record, we
8
conclude that the error was not plain. As to the remaining contentions, we discern no error.
A. Standard of Review
¶ 16 “A district court has broad discretion in determining the admissibility of evidence based on its relevance, probative value, and prejudicial impact.” People v. Morse, 2023 COA 27, ¶ 39. We review these evidentiary rulings for an abuse of discretion. Id. A court “abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law.” Id. As for arguments preserved by contemporaneous objection, we will reverse only if any abuse of discretion “substantially influenced the verdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (citation omitted).
¶ 17 If the defendant failed to object to the witness’s qualifications or testimony, or objected on grounds different from those raised on appeal, we review any error for plain error, applying the legal principles set out supra Part II.B. People v. Ujaama, 2012 COA 36,
¶ 37.
9
B. Relevance and Reliability Under Shreck 1. Additional Background
¶ 18 The prosecution endorsed clinical psychologist Sheri Vanino as an expert in sexual assault trauma responses. Vanino’s resume established that she had seventeen years of experience as a clinical psychologist, over twenty years of experience with sexual assault victims, and three advanced degrees in the field. She had also previously testified about victim responses to sexual assault in civil and criminal cases. Vanino authored a report outlining the topics she planned to discuss at trial: counterintuitive behavior during and after sexual assault; victims’ delayed reporting; how trauma affects memory; and the fight, flight, or freeze response.
¶ 19 Torres-Fernandez’s counsel did not object to Vanino’s endorsement or ask the court to hold a Shreck hearing on the relevance and reliability of her testimony. Instead, defense counsel objected at trial — immediately before Vanino testified — on the grounds that her testimony would be needlessly cumulative in light of similar testimony the SANE offered. Defense counsel also expressed concern about the possibility of Vanino testifying about
10
sexual assault statistics and argued that such testimony would be speculative and highly prejudicial.
¶ 20 The prosecution denied any plan to ask Vanino about statistics. As to the needlessly cumulative objection, the prosecution argued that Vanino’s testimony served the relevant purpose of explaining “rape myths” — i.e., G.V-H.’s dissociated response to the assault and counterintuitive behavior that the defense probed during G.V-H.’s cross-examination.2 The trial court noted that Torres-Fernandez’s counsel had been remiss in failing to address the matter in a motion in limine but sustained the objection to the extent it expected the prosecution to “streamline” Vanino’s testimony to avoid overlap with the SANE’s testimony. The court later qualified, without objection, Vanino as an expert in “clinical psychology and trauma response in sexual assault victims.”
¶ 21 Torres-Fernandez argues on appeal that the trial court erred by failing to make findings on the record, pursuant to Shreck, 22
2 This behavior included G.V-H.’s failure to call for help, sitting with
Torres-Fernandez on the couch after the assault, waiting days to disclose the assault, and choosing not to disclose the sexual assault to a doctor.
11
P.3d at 77-78, concerning (1) the reliability of Vanino’s testimony; (2) Vanino’s qualifications; (3) the usefulness of her testimony to the jury; and (4) CRE 403 considerations. The People counter that there are situations in which courts need not hold a Shreck hearing or make specific findings on the record. Because Torres-Fernandez did not raise this objection at trial and only challenged Vanino’s testimony on relevance grounds, we review for plain error. See Ujaama, ¶ 37.
2. Applicable Law and Analysis
¶ 22 CRE 702 governs the admissibility of expert testimony. The rule provides, “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 in the form of an opinion. CRE 702. The testimony must be relevant to be admissible, CRE 402, but relevant evidence may nevertheless be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” CRE 403.
12
¶ 23 When admitting scientific evidence, the court must consider the (1) reliability of the principles underlying the testimony; (2) qualifications of the witness; and (3) usefulness of the testimony to the jury. Shreck, 22 P.3d at 82-83. The court must also conduct an analysis under CRE 403. Id. at 83. While the decision to hold a hearing on the Shreck factors remains within the trial court’s discretion, People v. Rector, 248 P.3d 1196, 1201 (Colo. 2011), the court must make specific findings on the record about the reliability and relevance of the testimony, Ruibal v. People, 2018 CO 93, ¶ 13; see also People v. Yachik, 2020 COA 100, ¶ 54 (“As gatekeeper, the trial court need[s] to make specific findings on the record about the reliability, relevance, and usefulness of [the expert’s] testimony . . . .”). A court’s failure to do so does not amount to reversible error, however, if “the record not only supports admission of the contested testimony, but virtually requires it, or if Colorado has already properly accepted the basis of the expert’s testimony.” Kutzly v. People, 2019 CO 55, ¶ 11.
¶ 24 Here, the record is devoid of any indication that the court made specific findings under CRE 702 and 403 regarding Vanino’s testimony. Rather, it accepted the People’s endorsement, sustained
13
defense counsel’s “needlessly cumulative” objection, and admitted Vanino as an expert after she testified about her qualifications. Considering the steadfast requirement that trial courts make CRE 702 and 403 findings on the record, the court should have done so even in the absence of Torres-Fernandez’s counsel’s objection or request to hold a Shreck hearing. See Yachik, ¶ 54; Ruibal, ¶ 13.
¶ 25 But we conclude that the error was not substantial. Colorado courts have routinely recognized the value and upheld the reliability of expert testimony regarding counterintuitive reactions of sexual assault victims. People v. Vanderpauye, 2021 COA 121, ¶ 57, aff’d on other grounds, 2023 CO 42; People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011); People v. Baenziger, 97 P.3d 271, 275 (Colo. App. 2004). And in our view, the reliability of the proffered evidence was never in doubt considering Vanino’s involvement with sex assault victims and her experience testifying in criminal and civil cases. Because Colorado courts already properly accepted the basis of Vanino’s testimony and the record supports its relevance and reliability, her testimony did not undermine the fundamental fairness of the trial. Thus, the court’s failure to make findings on
14
the record does not warrant reversal. See, e.g., Kutzly, ¶ 18; Ruibal,
¶ 23.
C. Answers to Hypotheticals 1. Additional Background
¶ 26 Evidence showed that G.V-H. exhibited the following behavior:
• After verbally resisting Torres-Fernandez’s advances, G.V-H. “froze” and did not fight back.
• G.V-H. did not cry out for help during the assault, despite knowing that others were in the house.
• G.V-H. appeared emotionally flat after leaving the bedroom.
• G.V-H. delayed reporting the assault.
• When G.V-H. received medical treatment for vaginal discomfort and back pain, she did not disclose the sexual assault to the doctor.
Before Vanino testified, defense counsel cross-examined G.V-H. and Moreno on this counterintuitive behavior to support counsel’s theory that any sexual contact was consensual.
¶ 27 After taking the stand, Vanino told the jury that she knew “very little about this case,” had not reviewed any of the reports,
15
and had never spoken to G.V-H. or other witnesses. Rather, she was there to “educat[e] the jury about sexual assault or trauma victim behavior and what’s normal and what’s not.” The prosecutor then asked Vanino hypothetical questions about the fight, flight, or freeze response; why victims might not resist or cry out for help; how a weapon affects a victim’s actions; emotional responses a victim might exhibit after an assault; and delayed reporting.
¶ 28 Over defense counsel’s objections, the prosecutor elicited the following testimony from Vanino:
• When a person experiences fear, the brain releases adrenaline, norepinephrine, and natural opiates, which results in an “offline” — i.e., dissociated — state.
• It is “very common” that a victim does not cry out for help because the chemicals flooding the brain affect speech production.
• It is common for a victim to first resist verbally or physically, then freeze.
• The introduction of a weapon — which increases “the fear response” — can cause the victim to freeze.
16
• After a sexual assault, the victim may have a “flat affect”
and appear “zoned out.”
• There are many reasons victims may delay reporting, including embarrassment and fear of the offender.
• It is unsurprising that a victim receiving medical treatment would not report the sexual assault to her provider.
¶ 29 Torres-Fernandez maintains on appeal that these hypotheticals so closely mirrored the facts of this case that they amounted to Vanino opining that G.V-H. was truthful. We disagree.
2. Applicable Law and Analysis
¶ 30 Two legal principles guide our analysis: (1) the CRE 702 requirement that testimony be helpful to the jury and (2) the bar on expert witnesses bolstering victim credibility. People v. Cooper, 2021 CO 69, ¶ 85.
¶ 31 The former “hinges on whether the testimony ‘fits’ the facts” of a particular case. People v. Coons, 2021 CO 70, ¶ 1. “[G]eneralized expert testimony fits a case if it has a sufficient logical connection to the factual issues to be helpful to the jury while still clearing the ever-present CRE 403 admissibility bar.” Id. at ¶ 2. Testimony
17
with no connection to the case is not relevant; thus, testimony must fit the facts to be useful to the jury. See People v. Martinez, 74 P.3d 316, 323 (Colo. 2003).
¶ 32 Counsel may elicit expert opinion testimony by asking hypothetical questions that mirror the facts of the case. See People v. Short, 2018 COA 47, ¶ 16; People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). However, the expert’s opinion “may not bolster the credibility of a victim by impermissibly implying that she is telling, or has previously told, the truth about the charged incident.” Cooper, ¶ 95 (citing Venalonzo v. People, 2017 CO 9, ¶¶ 32-34). Admissibility hinges on whether the expert is offering an opinion — directly or indirectly — on the truthfulness of another witness on a particular occasion. Venalonzo, ¶ 32.
¶ 33 Divisions of this court have addressed arguments that parallel those Torres-Fernandez raises. In Short, the defendant was convicted of sexual assault on a child. Short, ¶ 1. There, the division held that an expert’s testimony about hypotheticals tailored to the facts of the case did not impermissibly bolster the victim’s credibility, and therefore the court did not abuse its discretion by admitting the testimony. Id. at ¶ 16. And in Cooper, the division
18
held that an expert’s testimony about domestic violence power control — which addressed the victim’s counterintuitive behavior — was proper. Cooper, ¶ 67.
¶ 34 Here, like in Short and Cooper, Vanino answered hypotheticals about counterintuitive behaviors of sexual assault victims. This testimony helped the jury understand G.V-H.’s nonintuitive acts and omissions. See id. Moreover, Vanino told the jury that she knew very little about the case and was instead there to educate the jurors about matters beyond their knowledge. Accordingly, Vanino’s testimony was relevant and did not touch upon the truthfulness of G.V-H.’s account of events. We conclude that the court did not err in admitting her testimony. See id. at ¶ 97.
D. SANE Smith’s Testimony 1. Additional Background
¶ 35 Mary Smith, a forensic SANE, examined G.V-H. seven days after the assault. Smith testified about her job generally and the results of G.V-H.’s exam. As relevant here, Smith said that her “job as a forensic nurse is to provide care for patients that have been victimized.” She then testified that her internal examination of G.V- H. revealed no physical injuries. She explained that this was not
19
unusual because “[a]bout [seventy-five] percent of women who have been assaulted have no visible or documentable injury” due to the elasticity of vaginal tissue.
¶ 36 Defense counsel did not object to Smith’s testimony or cross- examine her. Yet, on appeal, Torres-Fernandez argues that Smith’s statistical opinion improperly bolstered G.V-H.’s credibility and the court plainly erred by admitting her testimony. We disagree.
2. Applicable Law and Analysis
¶ 37 As stated, a witness is prohibited from opining on the truthfulness of a victim. Venalonzo, ¶ 32. Statistical opinion testimony that bears on a victim’s credibility is improper. See, e.g., People v. Marx, 2019 COA 138, ¶¶ 19-22 (the trial court plainly erred by permitting the expert to testify that only two to six percent of people who report sexual assault have fabricated the allegations). But the Colorado Supreme Court has deemed admissible expert testimony concerning the lack of injuries in sexual assault cases when such testimony would help the jury understand why the victim might not show physical signs of assault. People v. Ramirez, 155 P.3d 371, 382 (Colo. 2007).
20
¶ 38 Smith opined that seventy-five percent of sexual assault victims do not have internal injuries. This statistic merely addressed the likelihood of finding physical injuries during an exam — not the likelihood of the assault allegation itself being true. Cf. Marx, ¶¶ 19-22 (testimony about the percentage of children who fabricate sexual assault allegations and the likelihood of women and children becoming victims of sexual assault was improper). Additionally, the testimony served the relevant purpose of helping the jury understand G.V-H.’s lack of injuries, which Torres- Fernandez emphasized in his defense. See Ramirez, 155 P.3d at 382. Thus, the court did not err — let alone err in an obvious and substantial manner — when it allowed Smith to discuss the percentage of sexual assault victims with no physical injuries.
IV. Prosecutorial Misconduct A. Additional Background
¶ 39 During closing argument, the prosecutor made several statements that Torres-Fernadez now argues evoked emotions from the jurors:
• referring to G.V-H. as a “soft-spoken, quiet grandmother”
(emphasis added);
21
• asking the jury to “think of [G.V-H.] . . . telling her story over and over again even though it rips her to shreds every time” (emphasis added);
• detailing what G.V-H. has been “subject to” since disclosing the assault, including interviews with male police officers and a physical exam that involved G.V-H.’s “vagina being photographed with a gigantic camera in the middle of the night”; and • remarking that G.V-H. has been “dragged through the mud” over the past three years.
¶ 40 Defense counsel did not object to these statements at trial, but Torres-Fernandez now argues that the prosecutor encouraged the jury to decide the case based on sympathy for G.V-H. While we agree that some of the comments were improper, we conclude that the error in allowing them was not so substantial that it undermined the fundamental fairness of the trial. As to other comments, we discern no error.
B. Standard of Review
¶ 41 We review the issue for plain error, applying the legal principles outlined supra Part II.B. “Plain error review for
22
prosecutorial misconduct requires us to examine the totality of the circumstances, with particular attention to the exact language used, the nature of the misconduct, the surrounding context, and the strength of the other evidence of guilt.” People v. Dominguez- Castor, 2020 COA 1, ¶ 86. Prosecutorial misconduct amounts to plain error only if it is “flagrantly, glaringly, or tremendously improper.” Id. (citation omitted).
C. Applicable Law and Analysis
¶ 42 In closing, “it is improper for a prosecutor to use arguments ‘calculated to inflame the passions and prejudices of the jury.’” People v. Nerud, 2015 COA 27, ¶ 57 (citation omitted). However, a prosecutor may use rhetorical devices and “engage in oratorical embellishment and metaphorical nuance.” People v. Mendenhall, 2015 COA 107M, ¶ 78 (citation omitted). “Such rhetoric is only improper if it ‘induce[s] the jury to determine guilt on the basis of passion or prejudice, inject[s] irrelevant issues into the case, or accomplish[es] some other improper purpose.’” Id.
¶ 43 We agree that the prosecutor’s statements that G.V-H. had been “rip[ped] . . . to shreds” and “dragged through the mud” were improper, as this encouraged the jury to base its decision on
23
sympathy for the victim rather than evidence. Cf. People v. Dunlap, 975 P.2d 723, 759 (Colo. 1999) (concluding that the court erred by allowing the prosecutor to ask the jury to decide the case “[i]n the name of those who perished”). However, because the prosecution presented multiple witnesses and evidence precluding any reasonable possibility that the statements undermined the fairness of the trial, we conclude that any error was not substantial. See id.; Dominguez-Castor, ¶ 86. As to the remaining comments — referring to G.V-H. as a “grandmother” and outlining procedures she endured since the assault — we discern no error because these were factual statements based on evidence introduced during trial. Cf. People v. Leyba, 2019 COA 144, ¶ 58 (finding no prosecutorial misconduct when the prosecutor showed photos of the victims, said their names, and discussed family members).
V. Disposition
¶ 44 The judgment is affirmed.
JUDGE J. JONES and JUDGE DUNN concur.