Peo v. Romero
Peo v. Romero
Peo v. Romero
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,
¶ 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
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
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
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
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
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
¶ 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.;
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
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
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,
(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.
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,
¶ 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
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.
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.