Peo v. Starr

22CA1870 Peo v Starr 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1870
El Paso County District Court No. 21CR4943
Honorable Frances R. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Thomas Starr,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE JOHNSON
Lipinsky and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 3, 2025

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

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Joshua Thomas Starr (Starr), appeals his

judgment of conviction entered on jury verdicts finding him guilty of

two counts of second degree assault (strangulation / substantial

bodily injury), third degree assault, and harassment.

¶2 On appeal, Starr contends that his convictions should be

reversed because the district court erred by (1) admitting the

victim’s statements to two people in violation of CRE 803(3) and

803(4); (2) admitting the victim’s statements to medical staff in

violation of his Confrontation Clause rights; (3) failing to provide the

jury with his self-induced intoxication instruction; and (4) allowing

the prosecutor to engage in misconduct. He also alleges cumulative

error.

¶3 We conclude that the district court erred by admitting, under

the medical diagnosis and treatment exception to the hearsay rule,

CRE 803(4), the victim’s statement to a forensic nurse examiner

(also known as a sexual assault nurse examiner or SANE)

identifying her assailant by name. And we conclude that the

district court’s admission of the victim’s statement was not

harmless.

1
¶4 Because Starr’s other contentions are unlikely to arise in the

same manner on remand, if they arise at all, we need not address

them. Accordingly, we reverse Starr’s judgment of conviction and

remand the case to the district court for a new trial.

I. Background

¶5 One night around midnight, Julius Watson (Watson) was

walking home after work when he saw the victim, R.F., crying on

the sidewalk. R.F.’s face was swollen, and she had blood on her

cheek and neck. She asked Watson if she could use his cellphone.

Watson asked her if she was okay. R.F. told Watson that her

boyfriend “beat her up.” Watson then helped R.F. to his apartment

to call the police.

¶6 Officer Cindy Schneider (Officer Schneider) from the Manitou

Police Department was the primary investigator of the assault.

Officer Levi Hoover (Officer Hoover) accompanied Officer Schneider

and assisted with the investigation. At trial, Officer Hoover testified

that he had learned through Officer Schneider that R.F. and the

suspect lived a few blocks away from where Watson had

encountered R.F. R.F. went to a hospital.

2
¶7 At the hospital, several medical professionals spoke with R.F.,

but most relevant to Starr’s appeal, she was treated by physician

assistant Aaron Constantino (Constantino) and a SANE, Erin

Ropelewski (Ropelewski). R.F. reported to Ropelewski that her

boyfriend had strangled her and punched her in the face; and told

her, “I want to die, and if I die, you are going to die with me.”

Ropelewski testified at trial that R.F.’s face was swollen, she had

bruising and red marks all around her body, and she had a

fractured rib.

¶8 In the meantime, Officers Schneider and Hoover attempted to

contact R.F.’s boyfriend at the address R.F. had provided. They

knocked on the apartment door several times, but no one answered.

Office Schneider went to the hospital to obtain a better statement

from R.F. Later in the early morning, Officer Schneider or dispatch

had learned from R.F. (and possibly from R.F.’s mother) that R.F.’s

boyfriend was at the apartment they had visited earlier. The

officers returned there.

¶9 At the apartment, they discovered significant blood splatter on

the carpet and staircase leading to the apartment door and blood

throughout the apartment, including on the back of the front door

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and a living room couch. While inside, the officers found a man,

who turned out to be Starr, with scratches all over his arms and

blood on his hands and shorts. The officers took photos of the

apartment and Starr. Starr made statements to the officers.

¶ 10 The prosecution charged Starr with two counts of second

degree assault, third degree assault, and harassment, each as an

act of domestic violence. Before trial, the court granted Starr’s

motion to suppress his statements to the officers, reasoning that

the officers had improperly interrogated him while he was in

custody without advising him of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966).

¶ 11 Neither R.F. nor Officer Schneider appeared at trial. Because

R.F. was not present at trial, the prosecution sought to prove the

facts underlying R.F.’s assault through Watson, Officer Hoover,

Ropelewski, Constantino, and R.F.’s medical records. Although

Officer Hoover described his observations at the apartment and

Starr’s demeanor at the time, none of Starr’s statements, including

Starr identifying himself to the officers, were admitted due to the

court’s suppression ruling.

4
¶ 12 The prosecution attempted to prove that Starr was R.F.’s

assailant through Ropelewski’s testimony and R.F.’s medical

records. The court admitted most of the medical records, identified

as Exhibit 39. Even though the parties agreed that certain parts of

the medical records needed to be redacted before they were

admitted into evidence, the redaction did not occur.

¶ 13 The jury convicted Starr as charged. The district court

sentenced him to twenty-four months of probation.

II. CRE 803(4) Objections

¶ 14 Starr asserts that Ropelewski’s and Constantino’s testimony

and R.F.’s medical records were inadmissible hearsay, as they did

not fall within the medical diagnosis exception to hearsay, CRE

803(4).

A. Additional Facts

¶ 15 At the hospital, Ropelewski performed a sexual assault

examination on R.F., which included, among other things, R.F.’s

statement of the events resulting in her injuries and visit to the

hospital; a consent form signed by R.F. giving Ropelewski

permission to report the incident to law enforcement; various

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assessments, such as danger, safety, and fall-risk assessments;

and a psychosocial report.

¶ 16 During Constantino’s and Ropelewski’s testimony, but mostly

the latter, the court admitted over the objections of defense counsel

statements R.F. made to Ropelewski, as documented in the medical

records. The testimony, to which defense counsel objected,

included the following information:

• the date, time, and location of the assault;

• the name of R.F.’s assailant and his relationship to her;

• R.F.’s signature authorizing information to be released to

law enforcement;

• R.F.’s home situation, as found on the psychosocial report;

• R.F.’s relationship with Starr and Starr’s alcohol use;

• a verbatim narrative detailing R.F.’s allegations of what

occurred before and during the assault and her allegation

that Starr was under the influence of drugs at the time;

• R.F.’s references, repeated throughout the medical records,

that her boyfriend physically “assaulted” and “strangled”

her;

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• her statements given as part of the danger assessment,

which also included the medical professionals’ evaluation of

the likelihood that Starr would kill R.F.;

• R.F.’s statements expressing her feelings of safety in the

home, which included her fear of Starr;

• her description of the manner in which she was strangled,

the pressure applied, the number of times she was

strangled, and her reported symptoms;

• the statements that R.F. made about her symptoms to the

initial providers while describing the assault; and

• her statement that she had not fallen in the last three

months.

¶ 17 Defense counsel further objected to Constantino’s testimony

regarding such information as

• the medical professionals’ certification that R.F. had

suffered a serious bodily injury, as documented in Exhibit

40; and

• R.F.’s statements that she was “assaulted by her boyfriend,”

she was “struck multiple times about the face and also

experienced a strangulation injury although she does not

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believe she lost consciousness,” and she was experiencing

“facial pain and swelling.”

¶ 18 In overruling most of the objections, the district court applied

People v. Allee, 77 P.3d 831, 834 (Colo. App. 2003), finding that the

prosecution had laid a sufficient foundation for admission of the

statements under the medical diagnosis and treatment exception to

the hearsay rule. The court found that (1) R.F.’s motives for making

the statements were to promote medical treatment and diagnosis;

and (2) the medical professionals reasonably relied on her

statements in diagnosing R.F. and treating her. The court,

however, sustained Starr’s objections to the testimony about the

danger assessment and safety screenings, and in response, the

prosecutor agreed to redact those portions of Exhibit 39. But based

on our review of the record, that exhibit was not redacted.

B. Standard of Review and Applicable Law

¶ 19 We review the district court’s evidentiary decisions for abuse of

discretion. See People v. Gonzales–Quevedo, 203 P.3d 609, 612

(Colo. App. 2008).

¶ 20 “Hearsay” is defined as “a statement other than one made by

the declarant while testifying at the trial or hearing, offered in

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evidence to prove the truth of the matter asserted.” CRE 801(c).

Such statements are presumptively unreliable because the

declarant is not present to explain the statement in context and to

be cross-examined. Blecha v. People, 962 P.2d 931, 937 (Colo.

1998). Due to their presumptive unreliability, hearsay statements

generally are not admissible. Id.; see CRE 802. But a statement is

not hearsay if it is not offered for the truth of the matter asserted.

See People v. Cohen, 2019 COA 38, ¶ 12.

¶ 21 A hearsay statement may still be admitted, however, if it falls

within a hearsay exception. See People v. Blecha, 940 P.2d 1070,

1074 (Colo. App. 1996), aff’d, 962 P.2d 931 (Colo. 1998). “The

burden of establishing the preliminary facts to establish the

hearsay exception is on the proponent of the evidence.” People v.

Garcia, 826 P.2d 1259, 1264 (Colo. 1992).

¶ 22 A hearsay statement is admissible under CRE 803(4) if it is

“made for purposes of medical diagnosis or treatment and

describ[es] 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); see also Kelly v. Haralampopoulos, 2014

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CO 46, ¶ 20; People v. Tyme, 2013 COA 59, ¶ 16; King v. People,

785 P.2d, 596, 600 (Colo. 1990). The rule’s rationale is that

statements made to a physician or medical professional are

presumptively reliable because the patient believes that the

“effectiveness of the treatment . . . may depend largely upon the

accuracy of the information provided to the physician.” People v.

Jaramillo, 183 P.3d 665, 669 (Colo. App. 2008); W.C.L. v. People,

685 P.2d 176, 181 (Colo. 1984); People v. Galloway, 726 P.2d 249,

252 (Colo. App. 1986).

C. Medical Diagnosis/Treatment - Identity

¶ 23 Starr makes six arguments in support of his contention that

the court erred by admitting the medical professionals’ testimony

and the medical records: (1) the court did not parse out R.F.’s

statements but rather admitted the medical records wholesale,

except, as mentioned above, the danger and safety screenings; (2)

many of R.F.’s statements to Ropelewski, especially the narrative

about the assault, were not “necessary” for Ropelewski to treat R.F.,

as R.F. had already discussed her injuries with other medical

professionals; (3) R.F. did not identify her assailant for a medical

purpose and, thus, the identification was unnecessary for the

10
medical professionals to diagnose and treat her; (4) R.F.’s consent

to disclosure of the medical records and Officer Schneider’s

presence at the hospital, and possibly in the room during the exam,

made R.F.’s statements more investigatory than for medical

purposes; (5) R.F.’s statements about her injuries for the

strangulation exam were unnecessary because imaging and

diagnosis of R.F.’s injuries were underway before Ropelewski’s

exam; and (6) the medical records were replete with R.F.’s

statements made to other medical professionals.

¶ 24 We agree with Starr on his third contention — the identity of

R.F.’s assailant was unnecessary for medical diagnosis and

treatment and, therefore, was inadmissible hearsay under CRE

803(4). We also conclude that the error was not harmless and,

thus, we reverse his judgment of conviction.

¶ 25 Like the district court, the Attorney General relies on Allee, 77

P.3d at 834, to argue that the assailant’s identity has a medical

purpose because it assists with determining whether the victim

might need resources. The Attorney General further argues that,

unlike in Allee, the record shows that R.F. was provided with a

packet of domestic violence resources at the hospital.

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¶ 26 Allee held that the identity of a victim’s assailant generally

does not serve a medical purpose. But the division recognized that

an exception exists if a “portion of the statement is itself perceived

by the medical provider as necessary for diagnosis and treatment.”

Id. The division determined that the record in that case did not

“indicate that the identification of defendant as the victim’s

assailant was necessary for or pertinent to the physician’s diagnosis

or treatment or that he made any referral to domestic abuse

resources or took any other action based on that identification.” Id.

Even though the division concluded in Allee that the court erred, it

also determined that the error was harmless. This was because the

physician’s identification of the assailant was cumulative of

testimony given by the investigating officers, whose testimony the

defendant had not challenged. Id. at 835; see also Jaramillo, 183

P.3d at 669 (holding that, while testimony of the victim’s identity of

her assailant through the nurse practitioner was error, it was

harmless because it was cumulative of testimony provided by the

victim and the investigating officer’s testimony).

¶ 27 Like the divisions in Allee and Jaramillo, we agree that

identification of the victim’s assailant may in certain cases further

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medical diagnosis and treatment purposes and, thus, be admissible

under CRE 803(4). But in this case, we do not see how R.F.’s

identification of her assailant advanced any medical purpose. It

was appropriate for Ropelewski to ask R.F. about the events leading

to her injuries to assist with medical diagnosis and treatment, one

aspect being that R.F. would be safe and was not returning to a

potentially dangerous situation.

¶ 28 Ropelewski knew that R.F.’s assailant was her boyfriend with

whom she lived in an apartment. Based on this information,

Ropelewski was able to set up a safety plan that ensured R.F. did

not return to the apartment, as Ropelewski knew that R.F. was

going home with her mother upon discharge. Ropelewski was also

able to provide R.F. with domestic violence resources.

¶ 29 Missing, though, and critical to our analysis, is any

explanation from Ropelewski, in her testimony or in her medical

notes, about why learning the identity of the assailant was

necessary to further these two objectives. Simply because a victim

identifies her assailant to a SANE or other medical personnel does

not automatically transform that statement into one for medical

treatment or diagnosis. Without more explanation from Ropelewski

13
as to why the assailant’s identity was necessary to medically treat

R.F., we conclude that the identity of the R.F.’s assailant by name

was inadmissible hearsay under CRE 803(4). See People v. Vigil,

127 P.3d 916, 924 (Colo. 2006) (Although dealing with whether a

child’s statements to a SANE were testimonial for purposes of the

Confrontation Clause, the supreme court upheld the district court’s

exclusion of the child’s statement of the assailant by name under

CRE 803(4) “because the identity of the male who penetrated the

child was immaterial to the doctor’s opinion.”).

¶ 30 Although not dispositive, relevant to our inquiry, is that the

police were present at the hospital, appeared at times to be in the

examination room with R.F., and returned to the hospital to obtain

more information from R.F. about the whereabouts of R.F.’s

boyfriend after officers failed to make contact with him at the

apartment. See Tyme, ¶ 17 (noting that, “[w]here the facts and

circumstances surrounding the statements give rise to an inference

that the forensic examination or interview had no medical or

diagnostic characteristic, but was rather purely investigative, the

statements may not be considered trustworthy and thus may not be

admissible”). Under these circumstances, and in the absence of

14
testimony from Ropelewski as to what medical purpose was served

by R.F.’s identification of her assailant by name, we conclude the

court erred by admitting the references to Starr’s identity in R.F.’s

medical records.1

1 Starr also challenged R.F.’s statements identifying her assailant

by name to Ropelewski as testimonial statements implicating the
Confrontation Clause. Because we have already determined the
court erred by admitting R.F.’s statements under CRE 803(4), we do
not address Starr’s Confrontation Clause arguments based on the
doctrine of constitutional avoidance. See People v. Lybarger, 700
P.2d 910, 915 (Colo. 1985) (“Axiomatic to the exercise of judicial
authority is the principle that a court should not decide a
constitutional issue unless and until such issue is actually raised
by a party to the controversy and the necessity for such decision is
clear and inescapable.”).
We acknowledge, however, that the analysis under CRE 803(4)
is similar, in part, to the analysis of whether a declarant’s “primary
purpose” in making a statement implicates the Confrontation
Clause. Statements are testimonial for Confrontation Clause
purposes “when the circumstances objectively indicate that there is
no . . . ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.” Ohio v. Clark, 576 U.S. 237, 244
(2015) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)); see
also People v. Phillips, 2012 COA 176, ¶ 114 (quoting Michigan v.
Bryant, 562 U.S. 344, 366 (2011)). Despite any similarity in the
analytical frameworks, though, we point to the police presence at
the hospital and the police investigation to support our CRE 803(4)
analysis that Starr’s identity had no medical diagnosis or treatment
purpose. As a result, we take no position on what R.F.’s “primary
purpose” was when she identified Starr by name.

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D. The Error is not Harmless

¶ 31 Because Starr objected to the court’s admission of Starr’s

identification through R.F.’s medical records, we review under

nonconstitutional harmless error. “Under this standard, reversal is

required only if the error affects the substantial rights of the

parties.” Hagos v. People, 2012 CO 63, ¶ 12; see also Crim. P.

52(a). This means that reversal is required only when “the error

substantially influenced the verdict or affected the fairness of the

trial proceedings.” People v. Tevlin, 715 P.2d 338, 342 (Colo. 1986).

¶ 32 We conclude for three reasons that the error was not

harmless.

¶ 33 First, R.F.’s statement to Ropelewski that her boyfriend —

whom R.F. identified as Starr according to her medical records —

assaulted her was the only direct evidence linking Starr to the

16
assault. As mentioned previously, R.F. and Officer Schneider were

not present at trial to testify.2

¶ 34 After R.F. was able to escape her apartment, she encountered

Watson, who helped her call police. Although R.F. told Watson she

had been beaten up by her boyfriend, Watson never testified that

R.F. told him her boyfriend’s name. The record does not reflect the

content of R.F.’s 911 call, nor was the content of the call introduced

into evidence at trial, so we do not know what R.F said to the 911

operator. Although Officer Hoover testified about parts of his

investigation, Officer Schneider was the primary officer who spoke

with R.F. Because Officer Schneider did not testify at trial, none of

R.F.’s statements to the police were admitted into evidence.

Likewise, Officer Schneider wrote a report that might have identified

2 We acknowledge that it is immaterial whether the declarant is

available for purposes of the medical and diagnosis exception to
hearsay exception, CRE 803(4). Regardless, the prosecutor had no
explanation why Officer Schneider was not under subpoena to
testify. And as to R.F., the prosecutor indicated that, although R.F.
had been cooperating, he did not serve her with a subpoena
because his process server was sick. But the prosecutor did not
explain why he could not have retained another process server or
claim that he was unable to serve R.F. because he did not know her
address or because of some other unforeseen challenge.

17
Starr as R.F.’s assailant, but the report was not admitted into

evidence.

¶ 35 And Officer Hoover’s testimony was limited, given he was not

the primary investigating officer and because the court suppressed

Starr’s statements made to him at the apartment. Officer Hoover

testified, “I don’t believe I spoke to [R.F.], that was my partner that

spoke with her. I was just on scene.” Therefore, his testimony was

limited to his collection of evidence at the apartment, including

photographing Starr. And Officer Hoover did not testify that Starr

identified himself as R.F.’s boyfriend or that Starr admitted he lived

in the apartment. Because of the district court’s suppression

ruling, defense counsel objected at trial when the prosecutor

attempted to question Officer Hoover about any statements Starr

might have made at the apartment.

¶ 36 Officer Hoover identified Starr in court, but the officer’s

identification was nothing more than a statement that Starr was the

person he photographed at the apartment. Significantly, Officer

Hoover did not testify that Starr was R.F.’s boyfriend, Starr lived

with R.F., or Starr was the person who assaulted her.

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¶ 37 The record indicates that the prosecution relied on R.F.’s

statements to medical professionals identifying Starr to link him to

the person in the apartment and to show that he was the person

who assaulted her. When Starr sought a judgment of acquittal, the

prosecutor relied heavily on his attempt to link the person who

attacked R.F. to the person whom Officer Hoover had identified.

The court recognized there was a missing link, however, saying,

“Officer Hoover went to the residence, and he saw Mr. Starr. But

beyond that, we don’t have anything linking Mr. Starr as the

perpetrator of [R.F.]’s injuries.”

¶ 38 In response, the prosecutor referred to Ropelewski’s notes

identifying Starr:

In part of [Ropelewski’s] report on page 10, she
discusses that . . . [R.F.] lives at [address] in
Manitou Springs with her boyfriend, Joshua
Starr. That is everything the Court needs to
link the Joshua Starr that we have, whom the
police identified as the person living at that
very apartment, as the Joshua Starr that he is
her boyfriend. She named him as the
assailant. She named him as his — her
boyfriend. She named him as living at that
apartment.

And all of that is tied to the officer showing up
at the apartment, finding the very same
Joshua Starr who he could point to and say,

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yes, that is Joshua Starr, and finding all the
evidence that the crime took place there. The
Court has everything in terms of ID and
relationship through what she told
[Ropelewski], as well as the officer’s
investigations.

In denying the motion for judgment of acquittal, the court outlined

the evidence:

[R.F.] left her apartment and said her
boyfriend assaulted her. She was taken to the
hospital but told law enforcement, this is the
address where it happened and it was my
boyfriend, Joshua Starr. Law enforcement
goes there. He’s not at that apartment, so they
go back with her to the hospital. At the
hospital, she tells [Ropelewski], it was my
boyfriend, Joshua Starr. We live at this
address together.

The court further said that, upon returning to the apartment, the

officers found “the Joshua Starr who [R.F.] identified as her

boyfriend there.” The court denied the motion, concluding there

was sufficient circumstantial evidence for the jury to link the

defendant to the person who was R.F.’s boyfriend and who attacked

her.

¶ 39 Although Starr does not appeal the court’s denial of his motion

for judgment of acquittal, we refer to that ruling to note that the

court misstated the evidence. For example, no testimony in the

20
record indicates that R.F. told the police officers Starr’s name or

that her boyfriend lived with her. That information solely came

from R.F.’s statement to Ropelewski, which Ropelewski repeated at

trial. True, Officer Hoover testified that R.F. gave Officer Schneider

her address, which is how the officers knew where she lived. But

R.F.’s statements to Ropelewski documented in Exhibit 39 are

necessary to make the connection between the boyfriend with whom

R.F. lived and Starr.

¶ 40 R.F.’s statements to Ropelewski linking the individual whom

the police found in the apartment to the person with the same last

name who attacked R.F. were central to the prosecution’s case, as

the prosecutor’s closing argument underscored. The prosecutor

said in closing, R.F. “reported to [Ropelewski] that they lived

together at the address . . . she reported where it happened, that

Joshua Starr, this guy, was her boyfriend.”

¶ 41 Defense counsel stressed during closing argument the

importance of the fact that the police did not conduct an

investigation or produce a report, and that R.F. was not present at

trial, “because a large portion of the Government’s case against Mr.

Starr . . . was conducted . . . through the forensic nurse examiner

21
and not through Officer Schneider, who could have been here to tell

you what happened.” Defense counsel concluded by saying, “the

Government’s attempt at beyond a reasonable doubt in this case is

to provide a backup officer and medical professionals to show what

the results of the entire investigation [were] and what you may have

heard from [R.F.]” Thus, R.F.’s statement to Ropelewski that Starr

was the person who attacked her was the only evidence at trial that

identified her attacker by name.

¶ 42 Second, the prosecution provided no corroborating evidence

that Starr was the attacker. As mentioned above, the 911 call and

Officer Schnieder’s report were not introduced into evidence. The

prosecution presented no physical evidence, such as DNA, from

R.F.’s clothing or blood found in the apartment, to link Starr to the

assault. True, the prosecution introduced Officer Hoover’s

photographs of Starr that showed he had injuries consistent with

being in an altercation. Starr’s injuries were only relevant if his

identity was ascertained, which again came in through R.F.’s

hearsay-filled medical records.

¶ 43 Third, the prosecutor agreed to redact or remove the danger

and safety assessments from Exhibit 39. The record only refers to

22
page 69 of Exhibit 39 and fails to mention the other pages

encompassed by the court’s redaction ruling. Our review of Exhibit

39 suggests that the danger/safety assessments are on pages 15-

17, 48, and 57. Given the many redactions that should have been

made to the exhibit, in addition to the redaction of Starr’s name, we

conclude the error was not harmless. Therefore, we reverse Starr’s

convictions.

III. Conclusion

¶ 44 We reverse Starr’s judgment of conviction and remand the

case to the district court for a new trial.

JUDGE LIPINSKY and JUDGE MOULTRIE concur.

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