Peo in Interest of JPD

22CA2108 Peo in Interest of JPD 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2108
Elbert County District Court No. 21JD2
Honorable Gary M. Kramer, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.P.D.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE YUN
Graham* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney
General Fellow, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State
Public Defender, Denver, Colorado, for Juvenile-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 J.P.D., a juvenile, appeals the judgment adjudicating him

delinquent based on a finding that he committed acts that, if

committed by an adult, would constitute sexual assault. He

contends that the trial court reversibly erred by (1) admitting a

sexual assault nurse examiner’s testimony and written report

regarding the victim’s statements to her about the incident and

(2) allowing the nurse to show the jury a medical device that she

used during the victim’s examination as a demonstrative aid. We

disagree and therefore affirm the judgment.

I. Background

¶2 J.P.D., who was then fourteen years old, is the half brother of

the victim’s boyfriend. The victim and her boyfriend, who were both

eighteen, lived together. On the day in question, the boyfriend’s

grandfather had died, and the boyfriend, J.P.D., their aunt and

uncle, and the victim all gathered at the aunt and uncle’s house to

drink alcohol and play games. The victim became very intoxicated.

¶3 According to the victim, she wanted to lie down on the couch

on the home’s first floor, but J.P.D. directed her to a mattress in the

basement. The victim got into the bed while still clothed, which

included a pair of tight skinny jeans. J.P.D. went back upstairs but

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returned to check on the victim multiple times. Eventually, the

victim fell asleep. The victim woke up at some point and felt a

person lying next to her. When she called her boyfriend’s name,

someone responded, “[Y]es,” but the victim did not recognize the

voice as belonging to her boyfriend. The victim passed out again.

¶4 When the victim woke a second time, her jeans and underwear

were around her thighs, and she felt pain in her vagina and anus.

While walking up the stairs to the first floor, the victim felt blood

leaking from her anus. The victim found her boyfriend passed out

on the bathroom floor, and she woke him and told him that she

believed J.P.D. had raped her. The boyfriend fell back asleep, and

the victim then sat down next to the boyfriend and fell asleep as

well.

¶5 When they next woke up, the victim again told the boyfriend

that she believed J.P.D. had raped her, and they both returned to

their home. Later that day, the victim went to the hospital

“[b]ecause [she] felt like [she] was raped.” A sexual assault nurse

examiner (SANE) conducted an examination, during which the

victim recounted what had occurred the previous night. Evidence

collected during the examination was forwarded to the police, but

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the victim did not want to speak with law enforcement about the

matter at that time.

¶6 A month later, an investigator reached out to the victim, and

she agreed to speak with him about the incident. The investigator

interviewed J.P.D., who said that he “vividly” remembered the night

in question and denied engaging in any sexual contact with the

victim. When asked if his DNA would be found on the victim, J.P.D.

said it “probably wouldn’t be there.” After the interview ended,

J.P.D. called the investigator and requested a second interview,

during which he said that his recollection of the evening was

“vague” but that he had consensual sex with the victim.

¶7 The People filed a petition in delinquency, alleging that J.P.D.

had committed the offense of sexual assault (helpless victim). At

trial, the prosecution presented the victim’s recitation of the

incident and other evidence to support her testimony that she did

not consent to sex with J.P.D. J.P.D.’s theory of defense was that

he had consensual sex with the victim and that his initial denial of

the encounter and the victim’s allegations stemmed from a shared

concern that the then-eighteen-year-old victim would face criminal

charges for having sex with the then-fourteen-year-old J.P.D.

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¶8 As relevant here, the prosecution called the SANE, who was

qualified as an expert in the field of forensic nurse examinations.

The trial court admitted, over J.P.D.’s objection, the SANE’s

testimony and written report, detailing the victim’s recitation to her

of the incident, under the medical diagnosis or treatment exception

to the hearsay rule. The court also permitted, over J.P.D.’s

objection, the SANE to show the jury a medical device that she used

during the victim’s examination as a demonstrative aid. Following a

four-day trial, the jury found J.P.D. guilty as charged.

¶9 J.P.D. now appeals, contending that the trial court reversibly

erred by admitting certain evidence.

II. Standards of Review and Reversal

¶ 10 We review a trial court’s rulings to admit evidence under an

exception to the hearsay rule and to allow a party to use a

demonstrative aid for an abuse of discretion. People v. Johnson,

2019 COA 159, ¶ 86, aff’d, 2021 CO 35; see also People v. Palacios,

2018 COA 6M, ¶ 18. Under the abuse of discretion standard, we

will “uphold the trial court’s ruling unless it is manifestly arbitrary,

unreasonable, or unfair, or when it is based on an erroneous

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understanding or application of the law.” People v. Sandoval, 2018

COA 156, ¶ 26.

¶ 11 We are not persuaded by J.P.D.’s assertion that his evidentiary

challenges are of constitutional dimension. Thus, where a

defendant objects to the admission of evidence, we review any error

in the admission of such evidence for nonconstitutional harmless

error. Pernell v. People, 2018 CO 13, ¶ 22. “Under the

nonconstitutional harmless error test, the defendant bears the

burden of showing prejudice from the error.” People v. Short, 2018

COA 47, ¶ 54. “[A]n erroneous evidentiary ruling does not require

reversal unless the ruling affects the accused’s substantial rights,”

Nicholls v. People, 2017 CO 71, ¶ 17, or there is “a reasonable

probability that the court’s error contributed to [the defendant’s]

conviction,” Short, ¶ 54.

III. Hearsay

¶ 12 J.P.D. argues that the trial court reversibly erred by allowing

the SANE to testify regarding the victim’s out-of-court recitation of

the incident and by admitting her written report memorializing that

recitation. He asserts that this testimony and evidence constituted

inadmissible hearsay. We disagree.

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A. Additional Facts

¶ 13 At trial, the SANE testified that every patient who undergoes a

SANE examination has three reporting options and that, before the

examination began, the victim chose the option under which she

would participate in the examination but would not speak with law

enforcement at that time. Under this option, law enforcement

would be notified of the examination but would be given no

information about the underlying incident.

¶ 14 The SANE said that she obtains from every patient a recitation

of the incident that necessitated the examination and that she does

this to “help guide [her] . . . treatment of the patient” by providing “a

guideline of where [she is] going to look for injury on their bodies.”

The prosecutor then moved to admit the SANE’s written report of

the victim’s recitation to her of the underlying incident pursuant to

CRE 803(4).

¶ 15 Defense counsel objected, arguing that the victim’s recitation

of facts relating to the allegedly nonconsensual nature of the sexual

encounter was irrelevant to the SANE’s treatment. The trial court

found that the prosecution had failed to establish a sufficient

foundation to admit the report at that time.

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¶ 16 Subsequently, the SANE testified that the report was written

by her and that it memorialized the victim’s version of the incident

verbatim. She reiterated that she collects a history from every

patient and that the patient’s history guides her medical treatment

of the patient.

¶ 17 The prosecutor again moved to admit the written report, and

the trial court granted defense counsel’s request to conduct a voir

dire of the witness. Counsel asked the SANE whether she needed to

know about ancillary events surrounding an underlying incident —

such as “the movements of the patient prior to the sexual event” —

in order to effectively treat the patient. The SANE explained that

such information would help “[b]ecause . . . , as a forensic nurse, as

a nurse in general, we’re treating patients with mind, body, and

soul. So [I] do . . . need to know — not just their physical injuries,

but what their state of mind is at the time that I’m treating them.”

When asked about the treatment she could provide for a mental

health issue, the SANE responded as follows:

So when a patient comes in expressing that
they’ve been sexually assaulted, in my
experience, that can raise the bar on suicidal
ideation. That’s something that we check for.
Their mental health. This can be devastating

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to them and their families, so we want to make
sure that they’re calm.

Sometimes . . . I had a need to go back to the
physician and ask for them to treat [the
patient] for anxiety; or if they’re too emotional,
we’re going to take a break and, again, get
them something to calm them down, get them
something to eat, drink. We do it on their
terms, on their time, based on how they are
emotionally and physically.

¶ 18 The trial court admitted the SANE’s report over defense

counsel’s objection. And she read into the record her report of the

victim’s recitation of the incident.

B. Governing Law

¶ 19 “Hearsay statements are out-of-court declarations offered into

evidence for the truth of the matter asserted.” Blecha v. People,

962 P.2d 931, 937 (Colo. 1998) (citing CRE 801(c)). A hearsay

statement is not admissible unless it falls within an exception to the

hearsay rule. CRE 802; People v. Welsh, 176 P.3d 781, 790 (Colo.

App. 2007). As relevant here, there is an exception for hearsay

statements “1) made for purposes of medical diagnosis or

treatment; 2) that describe medical history, symptoms, or the

inception or cause of symptoms; 3) insofar as they are reasonably

pertinent to diagnosis or treatment.” Kelly v. Haralampopoulos,

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2014 CO 46, ¶ 20; see also CRE 803(4). Because a declarant

obtaining medical services “knows that a false statement may cause

misdiagnosis or mistreatment, [the statement] carries special

guarantees of credibility.” Kelly, ¶ 20 (quoting White v. Illinois,

502 U.S. 346, 356 (1992)).

¶ 20 A SANE examination serves the dual purpose of an evidence-

gathering tool and a “source of comprehensive care for victims.”

Teague v. People, 2017 CO 66, ¶ 12. Relying on the United States

Department of Justice report detailing the protocol for conducting

SANE examinations, our supreme court noted that “[a] timely, high-

quality medical forensic examination can potentially validate and

address sexual assault patients’ concerns, minimize the trauma

they may experience, and promote their healing,” and, at the same

time, it “can increase the likelihood that evidence collected will aid

in criminal case investigation, resulting in perpetrators being held

accountable and further sexual violence prevented.” Id. (citation

omitted).

¶ 21 A statement made to a SANE during an examination is

admissible if it meets a two-part test: “(1) the statement is

reasonably pertinent to treatment or diagnosis; and (2) the content

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of the statement is such as is reasonably relied on by a physician in

treatment or diagnosis.”1 People v. Tyme, 2013 COA 59, ¶ 16. But,

“[w]here the facts and circumstances surrounding the statements

give rise to an inference that the forensic examination . . . had no

medical or diagnostic characteristic, but was rather purely

investigative, the statements may not be considered trustworthy

and thus may not be admissible.” Id. at ¶ 17. In such a scenario,

the statements would not have been made for the purpose of

promoting diagnosis or treatment. Id.

¶ 22 In Tyme, the victim submitted to a SANE examination at the

request of law enforcement. Id. at ¶ 2. At trial, the prosecution

sought to introduce the SANE’s testimony and report about what

the victim told her regarding the sexual assault. Id. The SANE

1 In Kelly v. Haralampopoulos, 2014 CO 46, ¶¶ 40, 43, our supreme

court jettisoned the requirement that a physician actually rely on
the out-of-court statement for purposes of medical diagnosis under
CRE 803(4). In that case, the court concluded that the patient’s
girlfriend’s statements satisfied Rule 803(4)’s “reasonably pertinent”
requirement because the statements regarding the patient’s past
drug use were objectively pertinent to diagnosing his failure to
respond to resuscitation efforts. Kelly, ¶ 40. It thus held that the
physician’s “actual reliance upon the statements is not required” to
show that the statements are “reasonably pertinent to diagnosis.”
Id. at ¶¶ 40, 43.

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testified that she obtained this history in order to “guide the

assessment that [she was] going to do and to diagnose and treat.”

Id. Defense counsel objected to the testimony based on hearsay,

but the trial court overruled the objection because the victim’s

statements to the nurse were made for purposes of medical

diagnosis or treatment. Id. On appeal, a division of this court held

that the trial court did not err by admitting the SANE’s testimony

and report under CRE 803(4) because the nurse “testified that she

relied on the medical history to guide her examination and used it

‘to diagnose and treat,’ thereby satisfying the first prong of the

reliability test.” Id. at ¶ 20. The division also noted “that SANEs

normally rely on similar histories to ‘guide the[ir] diagnosis and

treatment,’ thereby demonstrating the reasonableness of her

reliance on [the victim’s] statements in satisfaction of the second

prong of the reliability test.” Id.

C. Application

¶ 23 Although the trial court did not make any specific findings, we

conclude that the record supports the court’s determination that

the evidence was admissible under CRE 803(4) because the

statements to the SANE were not made for purely investigative

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purposes and were “reasonably pertinent to [the] diagnosis or

treatment” of mental health issues. Kelly, ¶¶ 40, 43; Tyme, ¶¶ 17,

20.

¶ 24 Before the examination began and a history was provided, the

victim informed the SANE that she did not wish to speak with law

enforcement at that time. The victim only reported the assault a

month after the examination when police contacted her. Given that

the victim declined to report the assault to police at the time of the

examination, the facts here do not “give rise to an inference that the

forensic examination or interview had no medical or diagnostic

characteristic, but was rather purely investigative.” Tyme, ¶ 17.

¶ 25 Moreover, the SANE testified that she “take[s] a medical

history like this for every patient that [she] treat[s]” for an alleged

sexual assault and that those statements “guide [her] treatment of

[her] patients.” During voir dire, she explained specifically how the

entirety of the victim’s statement informed her medical diagnosis

and treatment of the victim. Although J.P.D. argues that the

victim’s “narrative description of the events prior to her falling

asleep” served no medical or diagnostic purpose, this argument

overlooks the SANE’s testimony that she needed all the information

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leading up to the assault to diagnose and treat the victim’s

psychological conditions such as suicidal ideation and anxiety.

Under these circumstances, the victim’s statements to the SANE

were “reasonably pertinent to [the] diagnosis or treatment” of her

mental health conditions.

¶ 26 Thus, we conclude that the trial court did not abuse its

discretion in admitting the victim’s statement to the SANE under

CRE 803(4).

IV. Demonstrative Aid

¶ 27 J.P.D. next argues that the trial court reversibly erred by

allowing the SANE to show the jury a medical device that she used

during the forensic examination as a demonstrative aid. He asserts

that the probative value of this demonstration was substantially

outweighed by its undue or unfair prejudicial effect. We conclude

that the trial court did not commit reversible error.

A. Additional Facts

¶ 28 At trial, an expert in forensic DNA analysis and comparison

provided a thorough explanation of DNA generally and of the testing

conducted in this case. The expert testified that the DNA profile

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found on the vaginal and cervical swabs taken from the victim was

consistent with J.P.D.’s DNA profile.

¶ 29 The SANE testified about how she collected the DNA samples

from the victim’s vagina and cervix by using a speculum. She

brought a speculum to trial and stated that a demonstration of its

use would aid her in explaining how the DNA was collected.

¶ 30 Defense counsel objected, arguing that the demonstration

would not aid the SANE’s testimony and would instead be used to

garner sympathy for the victim by illustrating the invasiveness of

the examination. The prosecutor asserted that the demonstration

would be helpful to show how the examination was conducted and

how a DNA sample from the cervix can be collected independent

from a DNA sample from the vagina. Defense counsel maintained

that this information was not relevant because J.P.D. was not

challenging the fact that he had sex with the victim, the manner in

which the DNA was collected, or the appropriateness of the forensic

examination.

¶ 31 The prosecutor then asserted that a demonstration of the

speculum’s use and, relatedly, what a patient has to endure during

its use was relevant to rebut the defense’s argument that the victim

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was not credible by showing that she would not subject herself to

such an invasive procedure if an assault had not occurred. Defense

counsel noted that the demonstration would not reveal whether the

victim personally felt the examination was invasive and would only

lead to speculation on that issue.

¶ 32 The trial court overruled the objection, finding that a

demonstration of the speculum’s use would aid the jury in

understanding how the DNA was collected, particularly in light of

the DNA expert’s earlier extensive testimony about DNA testing.

But the court agreed with defense counsel’s concern regarding

improper speculation as to the victim’s personal feelings about the

speculum’s use during the examination. Thus, the court held that

the SANE could demonstrate how the speculum was used but not

testify as to the effect its use had on the victim.

¶ 33 The SANE presented a speculum to the jury and demonstrated

how it is used to collect a DNA sample from a patient’s cervix. The

SANE later testified without objection that, after the speculum

exam, the victim was upset, which is typical, because “[i]t’s pretty

invasive.”

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B. Application

¶ 34 A party can use a demonstrative aid to illustrate or clarify a

witness’s testimony or other admitted evidence to make it more

comprehensible to the trier of fact. Palacios, ¶ 19.

To be used for this purpose, the demonstrative
aid must (1) be authentic, meaning the
proponent must demonstrate “that the
evidence is what it is claimed to be”; (2) be
relevant, meaning that it will assist the trier of
fact in understanding other testimonial and
documentary evidence; (3) be a “fair and
accurate representation of the evidence to
which it relates”; and (4) not be unduly
prejudicial, meaning its probative value must
not be substantially outweighed by its danger
for unfair prejudice.

Id. at ¶ 20 (citations omitted); see also CRE 401-403.

¶ 35 Even if the trial court may have abused its discretion in

allowing the speculum to be used as a demonstrative aid, reversal is

not required if the error was harmless. See People v. Summitt,

132 P.3d 320, 327 (Colo. 2006). Thus, the harmless error analysis

“requires an inquiry into whether, viewing the evidence as a whole,

the contested evidence substantially influenced the verdict or

affected the fairness of the trial proceedings.” Id. “An error in a

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criminal trial will be disregarded if there is not a reasonable

possibility that it contributed to the jury’s guilty verdict.” Id.

¶ 36 Assuming without deciding that the trial court abused its

discretion by allowing the SANE to use the speculum as a

demonstrative aid, based on a review of the entire record, we

conclude that any error in allowing the use of the demonstrative aid

was harmless.

¶ 37 The SANE opined, without objection, on the invasiveness of

the examination. See People v. Strickler, 2022 COA 1, ¶ 34 (“In

reviewing for harmless error, we examine a number of factors,

including . . . whether the testimony was cumulative . . . .”). In fact,

the SANE described how the examination was conducted using a

speculum. Seeing the speculum would not have prejudiced J.P.D.

any more than hearing about it. And, in its closing argument, the

prosecution mentioned the invasiveness of the entire forensic

examination but did not specifically reference the speculum

demonstration, which constituted a small part of the four-day trial.

See People v. Martinez, 2020 COA 141, ¶ 43 (The erroneous

admission of evidence was harmless because it “constituted a minor

portion of [the defendant’s] trial,” and “the prosecutor did not refer

17
to or repeat this testimony at any other point of the trial, including

during her opening statement and closing argument.”).

¶ 38 Still, J.P.D. argues that the demonstrative aid was used only

to engender sympathy for the victim because seeing the speculum

“conjures the image of a uniquely unpleasant procedure.” But the

trial court instructed the jurors that they “must not be influenced

by sympathy, bias or prejudice in reaching [their] decision.” Absent

evidence to the contrary, we presume the jury followed this

instruction. See People v. Carter, 2015 COA 24M-2, ¶ 59.

¶ 39 For all these reasons, we conclude that any error in allowing

the demonstrative aid was harmless.

V. Disposition

¶ 40 The judgment is affirmed.

JUDGE GRAHAM and JUDGE BERGER concur.

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