Peo v. Zumaran

• Court: Colorado Court of Appeals
• Decided: May 15, 2025
• Docket: 23CA0903
• Status: Unpublished

Opinion

23CA0903 Peo v Zumaran 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0903 Jefferson County District Court No. 22CR1453 Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alfredo Zumaran,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A Opinion by JUDGE SCHOCK Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Hana Alicic, Deputy State Public Defender, Golden, Colorado, for Defendant-Appellant ¶1 Defendant, Alfredo Zumaran, appeals his convictions for third

degree assault and harassment. He contends that the district court

reversibly erred by allowing a forensic nurse examiner (FNE) to

testify about statements the victim made to her, in violation of the

Confrontation Clause and the rule against hearsay. We affirm.

I. Background

¶2 The charges in this case stem from Zumaran’s physical

altercation with his girlfriend (the victim) in the parking lot of his

apartment complex. Zumaran’s neighbor witnessed the incident

and testified at trial. According to the neighbor, Zumaran pushed

the victim to the ground, grabbed her phone from her hand, and

threw it. About ten minutes later, Zumaran stood over the victim

as she sat on the curb, “making moves like he was going to punch

her.” He then grabbed her around her neck and dragged her “[a]

few feet” across the parking lot, holding one or both of his hands

around her neck for a minute or longer. The neighbor called 911.

¶3 When police arrived, the victim had a lump on the back of her

head; a missing fingernail; and marks on her neck, arm, and chest.

Zumaran told the police the victim had thrown his car keys at him,

and he responded by taking her phone from her. Zumaran claimed

1 that he and the victim had then fallen to the ground while wrestling

over the phone and that he did not intend to harm her.

¶4 The police took the victim to the hospital where she was

examined by the FNE. The victim told the FNE she had a headache

and neck pain and felt like there was mucus in her throat. She

attributed the neck pain to being strangled from behind by one

hand and an arm, “like a chokehold.”

¶5 Zumaran was charged with second degree assault, robbery,

third degree assault, harassment, criminal mischief, and

obstruction of telephone service. The second degree assault charge

was based on the alleged strangulation, see § 18-3-203(1)(i), C.R.S.

2024, while the third degree assault and harassment charges

alleged more generally that Zumaran had “caused bodily injury” to

the victim and unlawfully “subjected [the victim] to physical

contact,” see §§ 18-3-204(1)(a), 18-9-111(1)(a), C.R.S. 2024.

¶6 The victim did not respond to a subpoena for trial. So the

prosecution sought to introduce her statements through the FNE.

The prosecution requested a pretrial ruling on the admissibility of

testimony from the FNE relaying the victim’s statements “about her

medical state, past and present symptoms, pain or sensations, or

2 [their] inception or cause.” The prosecution argued those

statements were nontestimonial and admissible under CRE 803(4)

because they were made for purposes of medical diagnosis and

treatment. Zumaran objected, asserting that the admission of the

statements would violate his constitutional right of confrontation.

¶7 Before ruling on the issue, the district court questioned the

FNE outside the presence of the jury. The FNE testified that she

was a registered nurse who had been “trained to provide forensic

exams and provide comprehensive care to victims . . . of crime.”

She explained that those two roles were “kind of meshed together,”

in that the victim’s statements helped guide both her evidence

collection and nursing diagnosis. Evidence collection involves

“swabbing of different areas on the body” and taking photographs of

the person’s injuries, while providing care entails examining the

person for bruises, abrasions, or other conditions that are “outside

[the FNE’s] scope” and require intervention by another provider.

The person being examined must sign a form consenting to the

exam and to the release of the exam’s findings to law enforcement.

¶8 The FNE explained that the victim’s statement that she had

been strangled required a referral to the emergency department for

3 further evaluation. Based on that statement, the FNE conducted a

“detailed examination” of the victim’s face, chin, and neck and

asked the victim about her symptoms, whether she had lost

consciousness, and how many times she had been strangled. The

FNE then relayed that information to the emergency department

doctor so they could “do their own physical assessment and develop

a treatment plan.” The FNE also documented the victim’s other

statements — including that her arm had been pushed until it felt

like it would break, that she had been pushed to the ground, and

that she had been threatened with a knife — on a forensic chart.

Those statements did not prompt any further medical care.

¶9 The FNE testified that the victim’s statements helped her treat

and diagnose the victim. In particular, they helped her identify

“potential injuries, signs and symptoms of injuries,” as well as

“where to swab” and what parts of the body to photograph. She

clarified that the photos and swabs were taken for evidence

collection, while the statements were used for the treatment plan.

¶ 10 After hearing the FNE’s testimony, the district court ruled that

the victim’s statements to the FNE concerning the alleged

strangulation — including the fact that she was strangled and the

4 associated symptoms — were admissible because they “inform[ed]

the [FNE’s] decision to refer the matter for further treatment by the

emergency department” and, thus, “were specifically for diagnosis.”

But the court excluded other statements about the assault because

“that information was simply documented for forensic purposes.”

¶ 11 The FNE testified before the jury on direct examination that

the victim told her she “had a headache and neck pain and . . . felt

like there was mucus in her throat.” She further testified that the

victim said she had gotten the neck pain from being “strangled.”

¶ 12 On cross-examination, defense counsel asked the FNE if the

victim had told her that “two hands were used” in the strangulation

or that “the suspect approached from the front.” The prosecution

argued these questions opened the door to further examination

about how the victim was strangled. Without addressing that

argument, the district court clarified that any statements the victim

made to the FNE about the manner of strangulation were

admissible because they were “pertinent to the diagnosis” and

referral of the victim to the emergency department for treatment.

¶ 13 Defense counsel then clarified with the FNE that the victim

had reported that she had been strangled with “one hand and one

5 arm” and had been “approach[ed] from behind.” On redirect, the

FNE elaborated that the victim said it was “like a chokehold.”

¶ 14 The jury found Zumaran not guilty of second degree assault

(strangulation), robbery, and obstruction of telephone service. It

found Zumaran guilty of third degree assault and harassment.1

The court sentenced Zumaran to eighteen months of probation.

II. Confrontation Clause

¶ 15 Zumaran first contends that the FNE’s testimony recounting

the victim’s statements violated his constitutional confrontation

right because the statements were testimonial. We disagree.

A. Applicable Law and Standard of Review

¶ 16 The Confrontation Clauses of the United States and Colorado

Constitutions guarantee criminal defendants the right to confront

the witnesses against them. U.S. Const. amend VI; Colo. Const.

art. II, § 16; see also Nicholls v. People, 2017 CO 71, ¶ 31 (noting

that Colorado’s Confrontation Clause is interpreted “commensurate

with the federal Confrontation Clause”). Under these clauses, the

testimonial statements of a nontestifying witness are inadmissible

1 The prosecution dismissed the criminal mischief charge after it

rested its case and before closing arguments.

6 unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine them. People v. Garcia, 2021 CO 7,

¶ 8. Statements that are not testimonial do not implicate the

Confrontation Clause. See People v. McFee, 2016 COA 97, ¶ 33.

¶ 17 A statement is testimonial when, “in light of all the

circumstances, viewed objectively, the ‘primary purpose’ of

[procuring the statement] was to ‘creat[e] an out-of-court substitute

for trial testimony.’” Garcia, ¶ 9 (quoting Ohio v. Clark, 576 U.S.

237, 245 (2015)). In determining a statement’s primary purpose,

we examine its primary purpose when it is made, not when it is

introduced at trial. Id. at ¶ 10. And we look to “the purpose that a

reasonable declarant in those circumstances would have had,

rather than the declarant’s subjective or actual purpose.” McFee,

¶ 37. Relevant considerations may include the existence of an

ongoing emergency, the formality or spontaneity of the statements,

the environment in which the statements were made, and the

identity of the person to whom the statements were made. Id.

¶ 18 We review de novo whether the admission of evidence violated

the Confrontation Clause. People v. Perez, 2024 COA 94, ¶ 11.

7 B. Analysis

¶ 19 We agree with the district court that the victim’s statements to

the FNE about the strangulation and her associated symptoms were

not made for the primary purpose of creating a substitute for trial

testimony. See Garcia, ¶ 9. Instead, viewed from the perspective of

a reasonable declarant in the victim’s position, the purpose of those

statements was to facilitate medical diagnosis and treatment.

¶ 20 As the supreme court has recognized, forensic medical exams

serve dual medical and investigative purposes. Teague v. People,

2017 CO 66, ¶¶ 10, 13. They are both a “valuable tool for

collecting . . . evidence” and a “patient-centered medical procedure”

providing “comprehensive care for victims.” Id. at ¶¶ 2, 12. The

FNE’s testimony in this case confirmed that her exam served that

dual role. In such a scenario, a court should “distinguish[] between

those aspects of the examination which were diagnostic in nature

and those aspects which could arguably be labeled investigatory.”

People v. Vigil, 127 P.3d 916, 924 (Colo. 2006); see also United

States v. Norwood, 982 F.3d 1032, 1045, 1049-50 (7th Cir. 2020)

(explaining that, in assessing statements made during a “part-

8 medical, part-forensic examination,” courts should parse the

testimonial statements from the nontestimonial statements).

¶ 21 The district court did that. Importantly, it admitted only the

victim’s statements about the strangulation and its associated

symptoms. It did not admit statements about other aspects of the

assault that did not result in injuries or require medical care —

including that Zumaran had pushed the victim’s arm into the

steering wheel, held a knife to her throat and face, and threatened

to “mess up her face.” Nor did any of the statements identify

Zumaran by name. See Vigil, 127 P.3d at 924 (noting that a

victim’s statements naming the defendant were inadmissible

because the assailant’s identity was “immaterial to the doctor’s

opinion”); People v. Jones, 313 P.3d 626, 636 (Colo. App. 2011),

rev’d on other grounds, 2013 CO 59 (holding that statements were

nontestimonial where they did not include “any identifying

information about [the victim’s] assailant or details of the assault”).

¶ 22 As to the strangulation-related statements, the circumstances

objectively indicated a medical purpose rather than an investigative

one. The FNE testified that she used the information about the

victim’s symptoms to form a “nursing diagnosis” and that those

9 symptoms were “consistent with strangulation.” She also explained

that when a victim says they have been strangled, the “protocol” is

to refer the victim to another medical provider for further

evaluation, which she did in this case. In addition to that referral,

the victim’s statement that she had been strangled prompted a

“detailed examination” and further questions about what “signs and

symptoms” she had experienced — information the FNE relayed to

the other provider for use in developing a treatment plan.

¶ 23 The manner of strangulation was likewise reasonably pertinent

to that diagnosis and treatment. See Jones, 313 P.3d at 636

(holding that victim’s statement that “her assailant had caused her

neck and jaw pain by holding her mouth closed” was made for

purposes of medical diagnosis and treatment). For example, the

FNE testified that strangulation may occur either by “blocking off

the trachea” and cutting off air flow, or by “blocking the jugular

veins and carotid arteries” and cutting off blood flow. She further

explained that the different forms of strangulation may result in

different injuries. Thus, the record indicates that the victim’s

statements regarding the alleged strangulation — both that it

10 occurred and how it occurred — could, and did, directly influence

the FNE’s diagnosis and treatment recommendations.

¶ 24 The circumstances would also have led a reasonable declarant

in the victim’s position to expect that her statements would be used

for a medical purpose rather than as a substitute for trial

testimony. Most starkly, she made those statements to a nurse at a

hospital, in response to questions about her symptoms and

injuries. See McFee, ¶ 37 (noting relevance of the “identity of the

person to whom the statements were made” and “the environment

in which the statements were given”); Clark, 576 U.S. at 246

(holding that statements to persons who are not law enforcement

officers are “much less likely to be testimonial than statements to

law enforcement officers”). Even if the FNE was working with law

enforcement, that setting would not reasonably have indicated to

the victim that the FNE was “principally charged with uncovering

and prosecuting criminal behavior.” Clark, 576 U.S. at 249.

¶ 25 Moreover, by the time the victim spoke with the FNE, she had

already told police what had occurred, including that Zumaran had

“used a ‘choke hold’ to strangle [her].” She therefore had no reason

to repeat that information to the FNE for a testimonial purpose.

11 Instead, the different context of these statements suggested a

different purpose — namely, a medical one. See Jones, 313 P.3d at

636 (holding that a victim’s statements to a triage nurse about why

she was at the hospital were not testimonial when she had already

given a detailed description of the assault to a police officer).

¶ 26 Considering all the circumstances, we view the admitted

statements in this case as similar to those deemed nontestimonial

in Vigil and Jones. Both cases involved statements made by a

victim during the course of a sexual assault examination. Vigil, 127

P.3d at 922-23; Jones, 313 P.3d at 636. In both cases, the court

concluded that the statements in question were not testimonial

because the victims made them to help medical personnel diagnose

and treat their injuries — even if other statements made during the

course of the examination had an investigative purpose. See Vigil,

127 P.3d at 924-26; Jones, 313 P.3d at 636. Similarly, the primary

purpose of the victim’s statements to the FNE about the

strangulation was to allow medical personnel to diagnose and treat

her potential injuries, not to develop evidence for trial.

¶ 27 Zumaran attempts to distinguish Vigil and Jones by arguing

that, unlike those cases, the victim’s examination was completed at

12 the behest of law enforcement, who brought her to the hospital and

were “in and out of the room” during the examination. Cf. Vigil, 127

P.3d at 924 (noting that the police officer was not in the room when

the doctor performed the examination). He also points out that the

victim was advised of the FNE’s evidence-gathering role and signed

a form agreeing to the release of information to law enforcement.

¶ 28 But although these circumstances might reasonably have

indicated that portions of the examination were for gathering

evidence — as the FNE acknowledged — what matters is the

purpose of the specific statements at issue. See id. at 923-24 (“The

fact that the doctor was a member of a child protection team does

not, in and of itself, make him a government official . . . .”). And in

this regard, the statements about strangulation were unique in that

they triggered a particular treatment and referral “protocol.”

¶ 29 We are also unpersuaded by Zumaran’s contention that the

statements are testimonial because they were not made during an

ongoing emergency. The existence of an ongoing emergency is one

relevant consideration, particularly with respect to statements made

to law enforcement. McFee, ¶ 37; see also State v. Burke, 478 P.3d

1096, 1110 (Wash. 2021) (“The existence of an ongoing emergency

13 is often an indicator that a statement to law enforcement (or its

agents) is nontestimonial.”). But it is “not the touchstone of the

testimonial inquiry.” Michigan v. Bryant, 562 U.S. 344, 374 (2011).

When statements are made to someone other than law enforcement,

there may be many nontestimonial purposes beyond addressing an

ongoing emergency, one of which may be to obtain proper medical

care. Burke, 478 P.3d at 1110-11; see also Vigil, 127 P.3d at 926.

¶ 30 We agree with the district court that the victim’s statements to

the FNE concerning the alleged strangulation and her associated

symptoms were made primarily for that medical purpose. We

therefore conclude that they were not testimonial, and their

admission did not violate the Confrontation Clause.

III. Hearsay

¶ 31 Zumaran also argues that the victim’s statements to the FNE

were inadmissible hearsay that did not satisfy the medical purpose

hearsay exception. This argument dovetails with Zumaran’s

Confrontation Clause argument, and we reject it for similar reasons.

14 A. Applicable Law and Standard of Review

¶ 32 Hearsay — an out-of-court statement offered to prove the

truth of the matter asserted — is generally inadmissible unless it

satisfies one of the enumerated exceptions. CRE 801(c); CRE 802.

¶ 33 One such exception is for “[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or

general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.” CRE 803(4). Such

statements are presumed reliable because of a patient’s belief that

effective treatment depends on the accuracy of information provided

to a medical professional. People v. Tyme, 2013 COA 59, ¶ 9.

¶ 34 Under this exception, a statement made as part of a forensic

medical examination is admissible if (1) the statement is reasonably

pertinent to treatment or diagnosis, and (2) its content is such as is

reasonably relied on by a physician in treatment or diagnosis. Id. at

¶ 16. Such statements are not admissible if the surrounding facts

and circumstances “give rise to an inference that the forensic

examination or interview had no medical or diagnostic

characteristic, but was rather purely investigative.” Id. at ¶ 17.

15 ¶ 35 We review the district court’s evidentiary rulings for an abuse

of discretion. Id. at ¶ 8. A district court abuses its discretion if its

decision is manifestly arbitrary, unreasonable, or unfair. Id.

B. Analysis

¶ 36 The victim’s statements to the FNE described her “present

symptoms, pain, or sensations” and the “inception or general

character of the cause or external source thereof.” CRE 803(4).

Thus, their admissibility turned on whether they satisfied the two-

part test set forth in Tyme. We conclude that the district court

properly exercised its discretion in determining that they did.

¶ 37 First, for the reasons set forth above, the FNE’s testimony

established that the statements regarding strangulation were

“reasonably pertinent to treatment or diagnosis.” Tyme, ¶ 16. As

part of her care-providing function, the FNE needed to know what

symptoms the victim was experiencing so she could properly assess

those conditions and determine if additional treatment was

necessary. See People v. Abdulla, 2020 COA 109M, ¶¶ 82, 87.

¶ 38 And the fact that the symptoms had resulted from being

strangled — and the manner of strangulation — was medically

pertinent as well. The FNE explained that the victim’s report of

16 having been strangled informed the treatment and diagnosis by

leading her to (1) conduct a “detailed examination” of the victim’s

face, chin, and neck; (2) ask a series of follow-up questions about

loss of consciousness and other symptoms; and (3) refer the victim

to another provider for further evaluation. See Tyme, ¶ 20 (holding

that the first prong of the CRE 803(4) test was satisfied when nurse

examiner testified that she relied on the statement to “guide her

examination and used it ‘to diagnose and treat’” the victim).

¶ 39 Second, the reasonableness of the FNE’s reliance on the

statements is reflected in her testimony that a referral for further

evaluation is “protocol” for strangulation. See id. (holding that

testimony that nurse examiners “normally rely” on similar

statements to guide diagnosis and treatment satisfied second prong

of test). In other words, it was not simply the FNE’s subjective

determination that the strangulation required referral to another

provider for further evaluation. That was the standard procedure.

¶ 40 Echoing his Confrontation Clause argument, Zumaran

contends that the statements do not satisfy CRE 803(4) because the

victim did not request medical treatment, and thus, the exam was

purely investigatory. But “a declarant may make a statement for

17 medical diagnosis or treatment purposes, even if the primary

purpose of the exam is forensic.” Tyme, ¶ 14. And the record

supports the district court’s determination that although the victim

did not affirmatively seek out medical treatment, her statements

about the strangulation had a diagnostic or treatment objective —

even if other statements she made about the assault did not.

¶ 41 It is also immaterial that the FNE did not provide treatment for

the strangulation herself. Statements made to determine “the

nature, source, or cause of a patient’s medical condition” may

satisfy CRE 803(4), regardless of whether they ultimately lead to

treatment. Kelly v. Haralampopoulos, 2014 CO 46, ¶ 24; see also

Tyme, ¶ 19 (rejecting argument that CRE 803(4) did not apply

because the victim had already been treated by a physician and the

nurse examiner did not provide any follow-up treatment).

¶ 42 Thus, we conclude that the district court did not abuse its

discretion in allowing the FNE to testify about the victim’s

statements regarding the alleged strangulation under CRE 803(4).

IV. Harmlessness

¶ 43 Because we conclude that the district court did not err in

admitting testimony about the victim’s statements in question, our

18 analysis could stop there. But even if we were to conclude

otherwise, any error would be harmless given Zumaran’s acquittal

on the strangulation charge and the testimony of the eyewitness.

¶ 44 We review a preserved Confrontation Clause violation for

constitutional harmless error, meaning we will reverse unless the

error was harmless beyond a reasonable doubt. McFee, ¶ 28. We

review an erroneous evidentiary ruling for nonconstitutional

harmless error and will reverse if there is a “reasonable possibility

that [the error] contributed to the defendant’s conviction.” Abdulla,

¶ 62 (citation omitted). Under either standard, any error in

admitting the victim’s statements would be harmless.

¶ 45 As noted above, the statements at issue related only to the

alleged strangulation that was the basis of the second degree

assault charge. But the jury acquitted Zumaran on that charge.

Thus, the jury apparently did not accept the victim’s statements

that she had been strangled — at least not within the meaning of

section 18-3-203(1)(i). See Abdulla, ¶ 92 (holding that hearsay

statements “appear[ed] not to have had an impact on the jury”

when the jury acquitted the defendant of sexual assault). And

regardless, Zumaran was not prejudiced as to that charge.

19 ¶ 46 To the extent Zumaran argues that the victim’s statements

related to strangulation contributed to his conviction on the other

charges, we disagree for two reasons. First, those charges were not

premised on the alleged strangulation. The prosecutor explained in

closing argument that the third degree assault was “not the

strangulation charge” and argued that the requisite bodily injuries

for that charge were the victim’s broken fingernail, bruises, and

abrasions. The prosecutor argued that the harassment charge was

proved through the bruises and abrasions, as well as the neighbor’s

testimony that Zumaran “grabb[ed] [the victim] by her hair and

dragg[ed] her through that parking lot and shov[ed] her to the

ground.” And defense counsel conceded in closing that Zumaran’s

admitted act of grabbing the victim’s wrist could constitute

harassment. The victim’s statements to the FNE that were admitted

at trial did not address any of this other conduct.

¶ 47 Second, even if the third degree assault and harassment

convictions could have been based on the strangulation or

“chokehold,” the victim’s statements were cumulative of the more

detailed testimony from the neighbor eyewitness. The neighbor

testified that Zumaran held “one or two hands” around the victim’s

20 neck for “a minute . . . [m]aybe longer.” The victim’s statement that

“she was strangled . . . [l]ike a chokehold” added little, if anything,

to the neighbor’s testimony effectively saying the same thing.

¶ 48 Thus, (1) Zumaran was acquitted of the charge directly tied to

the challenged statements; (2) those statements were cumulative of

other testimony; (3) the prosecution did not rely on the statements

to prove the charges for which Zumaran was convicted; and (4) the

evidence of those charges was substantial, consisting of photos of

the victim’s injuries and eyewitness testimony. Under these

circumstances, we are confident that “the guilty verdict actually

rendered in this trial was surely unattributable” to the victim’s

statements to the FNE. McFee, ¶ 48 (citation omitted).

V. Disposition

¶ 49 The judgment is affirmed.

JUDGE DUNN and JUDGE BROWN concur.