Peo v. Montoya

23CA0629 Peo v Montoya 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0629
Adams County District Court No. 21CR974
Honorable Roberto Ramírez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donald Valentino Montoya,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE GOMEZ
Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Donald Valentino Montoya, appeals the judgment

of conviction entered on a jury verdict finding him guilty of assault.

Because we conclude that the district court reversibly erred by

admitting hearsay evidence in violation of Montoya’s right to be

confronted with the witnesses against him, we reverse the judgment

and remand the case for a new trial.

I. Background

¶2 Montoya and M.M., who is the victim in this case, were a

couple and had two children together.

¶3 One afternoon, police responded to a call at the couple’s home

due to an alleged assault.

¶4 The victim spoke with an emergency medical technician (EMT)

about her injuries before being transported by ambulance to the

hospital. After an exam by an emergency room physician and

nurse, which included a general emergency assessment and a CT

scan, the victim was transported to a second hospital. There, she

was seen by a forensic nurse examiner (FNE).

1
¶5 The People charged Montoya with second degree assault and

third degree assault, alleging that he had strangled and struck the

victim, causing her to suffer bodily injury.1

¶6 Because the prosecution was uncertain whether the victim

(who had waived receipt of a subpoena) would appear for trial, it

sought to admit the victim’s statements to the EMT and the FNE.

The court admitted the two sets of statements, ruling that they were

nontestimonial statements made for purposes of medical diagnosis

or treatment, and that they therefore did not violate Montoya’s

confrontation rights and were admissible under an exception to the

rule against hearsay.

¶7 The jury convicted Montoya of both charges.

¶8 On appeal, Montoya contends that (1) the district court erred

by admitting the victim’s statements to the EMT and the FNE;

(2) the prosecutor committed misconduct during closing arguments;

and (3) the judgment must be reversed due to cumulative error.

¶9 We agree in part with the first contention. Specifically, while

we reject Montoya’s argument that the court erred by admitting the

1 The People also charged Montoya with two counts of child abuse

but later dismissed those charges.

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victim’s statements to the EMT, we agree with his argument that

the court erred by admitting the victim’s statements to the FNE.

Because we cannot conclude that the error was harmless beyond a

reasonable doubt, we reverse the judgment and remand the case for

a new trial. And because the alleged prosecutorial misconduct is

not likely to recur on retrial, we decline to consider Montoya’s

second and third appellate contentions.

II. Admission of the Victim’s Statements

¶ 10 We first set out the relevant legal standards and then turn to

Montoya’s arguments challenging the admission of the victim’s

statements to the EMT and the FNE.

A. Legal Standards and Standard of Review

1. Confrontation Clause

¶ 11 The Confrontation Clauses of the United States and Colorado

Constitutions guarantee criminal defendants the right to be

confronted with the witnesses against them. U.S. Const. amend.

VI; Colo. Const. art. II, § 16; see also Nicholls v. People, 2017 CO 71,

¶ 31 (Colorado’s confrontation clause is interpreted to be

“commensurate with the federal Confrontation Clause”).

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¶ 12 The Confrontation Clauses are implicated only by statements

that are testimonial. Nicholls, ¶ 31. A statement is testimonial if,

based on an objective view of the totality of the circumstances, its

primary purpose was “to ‘creat[e] an out-of-court substitute for trial

testimony.’” People v. Garcia, 2021 CO 7, ¶ 9 (alteration in original)

(quoting Ohio v. Clark, 576 U.S. 237, 245 (2015)). We consider the

primary purpose of the statement at the time it was made — not at

the time it is proffered at trial. Id. at ¶ 10. We also look to “the

purpose that a reasonable declarant in those circumstances would

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

People v. McFee, 2016 COA 97, ¶ 37. Relevant considerations in

assessing a statement’s purpose include the existence of an ongoing

emergency, the formality or spontaneity of the statement, the

environment in which the statement was made, and the identity of

the person to whom the statement was made. Id.

¶ 13 If statements are testimonial, the Confrontation Clauses

preclude their admission unless (1) the witness is unavailable and

(2) the defendant had a prior opportunity for cross-examination.

Garcia, ¶ 8; Campbell v. People, 2020 CO 49, ¶ 23.

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

a defendant’s Confrontation Clause rights. People v. Perez, 2024

COA 94, ¶ 11.

2. Hearsay

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

truth of the matter asserted — is generally inadmissible unless it

satisfies an enumerated exception. CRE 801(c); CRE 802.

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

medical diagnosis or treatment and describing medical history, or

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

general character of the cause or external source thereof insofar as

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

statements are presumed to be reliable because of patients’ belief

that providing truthful information to medical professionals will

assist in effective diagnosis and treatment. People v. Abdulla, 2020

COA 109M, ¶ 80. Under this exception, a statement made as part

of a medical exam is admissible if (1) it is reasonably pertinent to

treatment or diagnosis and (2) its content is such as is reasonably

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

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¶ 17 We review a district court’s evidentiary rulings for an abuse of

discretion. Id. at ¶ 61. A court abuses its discretion if its decision

is manifestly arbitrary, unreasonable, or unfair or misapplies the

law. Id.

B. Statements to the EMT

¶ 18 Applying these standards, we reject Montoya’s assertion that

the district court erred by admitting the victim’s statements to the

EMT.

1. Additional Background

¶ 19 After emergency personnel arrived on the scene, the victim

was taken into the back of an ambulance, where an EMT asked her

about her injuries. The exchange was captured on video by a body

camera worn by a police officer who responded to the scene.

¶ 20 In the approximately one-and-a-half-minute video, the victim

had an apparent injury on her forehead and was crying and short of

breath. After learning the victim’s name, the EMT conducted a

physical assessment and asked her the questions like the following:

“Where are you hurting?”; “Does it hurt here?”; “What happened

today, did you get choked?”; “What did you get hit with?”; “With a

hand or with something else?”; “You have a tear mark in your ear,

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what’s that from?”; “Do you have anything on the other side?”;

“What’s going on with your chest, you’ve got an abrasion there,

too?”; “Take a few deep breaths for me, does it hurt to do that?”;

and “Did he hit you in the belly at all?” The victim responded to the

EMT’s questions, telling him where her body hurt and how the

injuries happened.

¶ 21 During the trial, the prosecution sought to admit the body

camera footage containing the victim’s statements to the EMT.

After viewing the video, the district court found that the victim was

being seen by a medical professional “for the purpose of medical

diagnosis and treatment and not with an eye towards litigation or

any criminal investigatory purpose.” The court thus concluded that

the victim’s statements were nontestimonial and were excepted

from the rule against hearsay. The court accordingly allowed the

video to be played at trial.

2. Confrontation Clause Ruling

¶ 22 We agree with the district court’s determination that the

victim’s statements to the EMT were not made for the primary

purpose of creating a substitute for trial testimony. See Garcia, ¶ 9.

Instead, viewed from the perspective of a reasonable declarant in

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the victim’s position, the purpose of her statements was to facilitate

medical diagnosis and treatment. See McFee, ¶ 37.

¶ 23 The victim made the statements to the EMT shortly after being

injured and while in imminent need of medical attention. She was

in the back of an ambulance, an environment associated with the

provision of medical care. And, while a police officer happened to

be present, the victim was communicating primarily with the EMT,

a medical provider, who asked questions exclusively about her

symptoms and injuries while conducting a physical exam. See id.

(relevant considerations in determining whether statements are

testimonial include the existence of an ongoing emergency, the

environment in which the statements were made, and the identity

of the person to whom they were made); Clark, 576 U.S. at 246

(statements to others are “much less likely to be testimonial than

statements to law enforcement officers”). Moreover, in responding

to the EMT, the victim didn’t identify her assailant or describe the

assault in detail. See People v. Jones, 313 P.3d 626, 636 (Colo.

App. 2011) (a victim’s statements to medical personnel were

nontestimonial where they didn’t include “any identifying

8
information about her assailant or details of the assault”), rev’d on

other grounds, 2013 CO 59.

¶ 24 Accordingly, we conclude that the victim’s statements to the

EMT were not testimonial and that their admission did not violate

the Federal or Colorado Confrontation Clause. See Nicholls, ¶ 31.

3. Hearsay Ruling

¶ 25 For similar reasons, we discern no abuse of discretion in the

district court’s determination that the victim’s statements to the

EMT satisfied the medical diagnosis or treatment hearsay exception.

¶ 26 The court determined that these statements fell within the

exception, as they “were made for the purposes of medical diagnosis

or treatment” and they “describ[ed] the present symptoms, the

present pain, sensations, and the general character of the cause or

external source insofar as reasonable pertinent to diagnosis or

treatment.” We agree and therefore conclude that the court’s

hearsay ruling doesn’t represent an abuse of discretion. See CRE

803(4); Abdulla, ¶ 80.

C. Statements to the FNE

¶ 27 However, we agree with Montoya’s assertion that the district

court erred by admitting the victim’s statements to the FNE in

9
violation of Montoya’s Confrontation Clause rights. We also agree

with his assertion that this error warrants a new trial.

1. Additional Background

¶ 28 The FNE met with the victim at the second hospital after the

victim received initial treatment at another hospital. The FNE exam

was requested by one of the responding officers.

¶ 29 Before the exam, the FNE told the victim what the exam would

look like and went over reporting options with law enforcement.

The victim then signed a consent form, which conveyed that the

exam “consists of collecting evidence and laboratory specimens

necessary for investigation.” The victim also initialed statements

indicating that she would “be offered treatment for infection and

pregnancy prevention,” she could “request to be seen by the

Emergency Department physician for any medical problems or

concerns,” and she “consent[ed] to the release and disclosure of the

findings of th[e] exam to the law enforcement agency.”2

¶ 30 Next, the FNE asked the victim about her medical history and

about the details of the assault. During this portion of the exam,

2 The form was one designed for sexual assault exams, but the FNE

said she uses the same form for all types of forensic exams.

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the FNE wrote down the victim’s description, verbatim, of what

happened during the assault:

I just got back from buying my son an Easter
basket. He lent me his bank card for it. I took
the kids with me while he was at the house. I
got back and smelled alcohol on his breath. I
asked if he was drinking and he lied so I asked
him to leave. He accused me of taking his
wallet. He started calling me a bitch and a
cunt. I put my daughter in the swing in the
bedroom and told my son to check on her so
he wouldn’t be in the room with us. I closed
the bedroom door to keep them safe. And then
I told him he needs to leave. He threatened to
take both the kids and leave. He kept telling
me to give him his wallet, but I didn’t have it.
He pushed me down and started choking me.
After he stopped, I said I was going to call the
cops. I started to dial and he took the phone
from me. I said I was going to go take care of
the kids and put the baby in the bath to try to
defuse the situation. He kept trying to leave
with my son, so I blocked the front door. He
put down my son and started punching me in
my face. He yelled at me and I kept begging
him. He kept telling me to give him my
daughter. His punch slid off me and hit her.
And he swore he didn’t hit her, but he was
mad when I said that he hit her. He kept
hitting me. I dropped my phone, picked it up,
then started calling the cops and he ran out
the back door. I forgot — after he choked me, I
said, “Are you really going to do this? You’re
blocking my airway.” And he just laughed.

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¶ 31 The FNE then performed a full physical exam of the victim and

documented her injuries.

¶ 32 Before trial, the prosecution filed a motion seeking the

admission of the victim’s description of the assault to the FNE.

Montoya objected. The district court ruled that it would admit the

statements, concluding that the statements didn’t implicate

Montoya’s confrontation rights because they were made for the

purpose of medical diagnosis or treatment and not to develop

testimony for trial.

¶ 33 At trial, the FNE testified as an expert in forensic nursing and

examinations. In addition to discussing the signs and symptoms of

strangulation and describing the victim’s injuries, the FNE was

permitted to read into evidence the victim’s description of the

assault that the FNE had transcribed during the exam. The

transcription itself was also admitted into evidence.

2. Confrontation Clause Ruling

¶ 34 We begin by considering whether the victim’s statements

describing the assault to the FNE were testimonial. Thus, we ask

whether, viewed from the perspective of a reasonable declarant at

the time of the statements, the primary purpose of the statements

12
was to create an out-of-court substitute for trial testimony. See

Garcia, ¶¶ 9-10; McFee, ¶ 37. We conclude that it was.

¶ 35 As our supreme court has recognized, forensic medical exams

serve dual medical and investigative purposes as both a “patient-

centered medical procedure” and a “valuable tool for collecting . . .

evidence.” Teague v. People, 2017 CO 66, ¶ 2; see also id. at ¶¶ 10-

13. Given this dual role, a court should “distinguish[] between

those aspects of [an] examination which were diagnostic in nature

and those aspects which could arguably be labeled investigatory.”

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

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

(in assessing statements made during a “part-medical, part-forensic

examination,” courts should parse those statements that are

testimonial from those that are nontestimonial).

¶ 36 Again, we take into account such considerations as the

existence of an ongoing emergency, the formality or spontaneity of

the statements, the environment in which the statements were

made, and the identity of the person to whom the statements were

made. See McFee, ¶ 37. Further, courts in other jurisdictions

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addressing statements made to dual-purpose medical professionals

have emphasized three additional considerations:

• whether other medical professionals had already

examined and treated the declarant, see, e.g., State v.

Cannon, 254 S.W.3d 287, 305 (Tenn. 2008) (statements

to a sexual assault nurse examiner (SANE) were

testimonial, in part because the victim had already been

treated by an emergency room physician and nurse, such

that “there was no ongoing emergency”);

• whether the declarant was made aware, such as by the

execution of a consent form, that the medical personnel

would be gathering evidence, see, e.g., State v. Miller, 264

P.3d 461, 487-90 (Kan. 2011) (statements to a SANE

were nontestimonial, in part because nothing in the

record indicated that the child victim or her mother were

informed about the collection of evidence); and

• whether the declarant was capable of understanding the

likelihood of use in a future prosecution, see, e.g., United

States v. Barker, 820 F.3d 167, 171 (5th Cir. 2016)

(statements to a SANE were nontestimonial, in part

14
because the child victim “lacked the understanding of the

criminal justice system to intend her comments to

function as a substitute for trial testimony”).

¶ 37 Here, we conclude that a reasonable declarant in the victim’s

position would have understood that the primary purpose of her

statements describing the assault were for investigatory purposes

and potential prosecution rather than merely to facilitate medical

diagnosis and treatment. See Garcia, ¶ 9; McFee, ¶ 37.

¶ 38 Although the victim made the statements to a medical provider

at a hospital, she had already been seen by the EMT and by an

emergency room physician and nurse at one hospital before being

transferred to a second hospital and meeting with the FNE. Thus,

by the time she met with the FNE, there was no longer a medical

emergency. And even as the FNE performed a physical evaluation

and asked the victim about her injuries and symptoms, other

medical providers at the hospital were responsible for monitoring

the victim’s vital signs and potential need for medical assistance.

Therefore, a reasonable person in the victim’s position would

understand the FNE’s role as separate from that of the other

providers who were monitoring her and providing her care.

15
¶ 39 Moreover, the consent form the victim completed before the

FNE exam informed her that the exam would “consist[] of collecting

evidence . . . for investigation.” The form’s statement that the

victim could “request to be seen by the Emergency Department

physician for any medical problems or concerns” also implied that

any medical treatment would be separate from the exam the FNE

was providing. And by initialing and signing the form, the victim

“consent[ed] to the release and disclosure of the findings of th[e]

exam to the law enforcement agency.”

¶ 40 Finally, because the FNE exam was requested by one of the

responding officers, it clearly was part of an initial investigation into

the assault. See Vigil, 127 P.3d at 922 (considering “whether and to

what extent government officials were involved in producing the

statements” in deciding whether the statements were testimonial).

¶ 41 The totality of the circumstances, therefore, leads us to

conclude that the victim’s statements describing the assault to the

FNE were testimonial in nature. While other statements by the

victim relating to her injuries and symptoms may have been made

for purposes of medical diagnosis and treatment, the statements

describing what had happened during the assault were not. See id.

16
at 924; see also Jones, 313 P.3d at 636 (a victim’s statements to

medical personnel that she’d been raped and that her assailant had

held her mouth closed while he assaulted her were nontestimonial,

in part because the victim didn’t relay “any identifying information

about her assailant or details of the assault”).

¶ 42 Because these statements were testimonial, they were not

admissible unless (1) the victim was unavailable and (2) Montoya

had a prior opportunity for cross-examination. See Garcia, ¶ 8;

Campbell, ¶ 23. The second requirement wasn’t satisfied, as

Montoya undisputedly did not have any prior opportunity to cross-

examine the victim on the statements. Thus, the statements were

improperly admitted at trial, and we needn’t decide whether the first

requirement — the victim’s unavailability — was also satisfied.3

3. Constitutional Harmless Error

¶ 43 We review preserved Confrontation Clause violations under the

constitutional harmless error standard. Perez, ¶ 11. Under this

standard, reversal is required unless we can conclude that the error

3 Because we agree with Montoya’s Confrontation Clause challenge,

we don’t address his related challenge to the same statements as
inadmissible hearsay that doesn’t fall within the exception for
statements made for medical diagnosis or treatment.

17
was harmless beyond a reasonable doubt. Hagos v. People, 2012

CO 63, ¶ 11. In evaluating constitutional harmlessness, relevant

considerations include

(1) the importance of the declarant’s statement
to the prosecution’s case; (2) whether the
statement was cumulative; (3) the presence or
absence of corroborating or contradictory
evidence on the material points of the witness’s
testimony; (4) the extent of the cross-
examination otherwise permitted; [and] (5) the
overall strength of the prosecution’s case.

People v. Phillips, 2012 COA 176, ¶ 93 (alteration in original)

(quoting Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo. 2007)).

An error of this nature “is considered harmless if there is no

reasonable possibility that it affected the guilty verdict.” Id.

(quoting Arteaga-Lansaw, 159 P.3d at 110).

¶ 44 We cannot conclude that the error in this case was harmless

beyond a reasonable doubt. The prosecution relied on the victim’s

description of the assault to the FNE to shape the narrative of the

case in both opening statements and closing arguments. A review

of the record does not indicate that there was any other evidence

containing the details of the assault the victim relayed to the FNE.

Rather, the other record evidence as to what happened consists

18
largely of the few statements the victim gave to the EMT, evidence

relating to the victim’s documented injuries but not how they came

to be, and body camera footage of Montoya providing a different

version of events — that he hadn’t been drinking and that he hadn’t

touched the victim.

¶ 45 Given the lack of corroborating evidence, the presence of some

contradictory evidence, and the prosecution’s reliance on the

victim’s statements to the FNE to shape the narrative of the case,

there is a reasonable possibility that the admission of the

statements affected the guilty verdict. See id. Accordingly, we

reverse the judgment and remand the case for a new trial.

III. Disposition

¶ 46 The judgment is reversed, and the case is remanded to the

district court for a new trial.

JUDGE FREYRE and JUDGE MEIRINK concur.

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