Peo v. Germanson

22CA0368 Peo v Germanson 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0368
City and County of Denver District Court No. 19CR8178
Honorable David H. Goldberg, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob L. Germanson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE HAWTHORNE*
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, 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. 2024.
¶1 Defendant, Jacob L. Germanson, appeals the judgment of

conviction entered on jury verdicts finding him guilty of two counts

of sexual assault, one count of second degree assault

(strangulation), and one count of third degree assault. We affirm.

I. Background

¶2 In late October 2019, the victim, R.T., called the police to

report that her boyfriend — Germanson — had sexually assaulted

her. Less than thirty minutes later, Germanson called the police to

report that his girlfriend — R.T. — would call them to falsely report

he had sexually assaulted her. The police arrested Germanson, and

the prosecution filed a complaint and information charging1 him

with two counts of sexual assault with force under section

18-3-402(1)(a), (4), C.R.S. 2019; one count of second degree assault

for strangulation under section 18-3-203(1)(i), C.R.S. 2024; and one

count of third degree assault under section 18-3-204(1)(a), C.R.S.

2019.

¶3 Germanson asserted that R.T. consented to engage in sexual

intercourse with him, but that she later filed a false police report

1 For statutes that have since changed, we apply the versions in

effect at the time of the underlying incident.

1
against him because she became angry upon learning that he was

not divorced from his wife.

¶4 The case proceeded to a jury trial. As noted above, the jury

found Germanson guilty of two counts of sexual assault, one count

of second degree assault (strangulation), and one count of third

degree assault. On one of the sexual assault counts, the jury found

that Germanson caused R.T.’s submission through force or

violence, which enhanced that count from a class 4 felony to a class

3 felony under section 18-3-402(4)(a), C.R.S. 2019.

¶5 On appeal, Germanson contends that the district court abused

its discretion by (1) improperly admitting as res gestae evidence his

communications with R.T. in the days leading up to the sexual

encounter; (2) allowing a domestic violence expert (the DV expert) to

testify beyond the scope of the prosecution’s disclosure of her

anticipated testimony; and (3) permitting a sexual assault nurse

examiner (SANE) to testify beyond her expertise and allowing her to

comment on R.T.’s credibility. Germanson also contends that we

should reverse his judgment of conviction under the cumulative

error doctrine.

2
II. Standard of Review

¶6 We review a trial court’s evidentiary rulings — such as rulings

on admission of exhibits and expert testimony — for an abuse of

discretion. People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011). A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or is based on misapprehending or

misapplying the law. People v. Kendrick, 2017 CO 82, ¶ 36.

Determining whether a court misapprehended or misapplied the law

“does not require deference to the trial court. Instead, the trial

court’s application or interpretation of the law when making an

evidentiary ruling is a question of law we review de novo.” People v.

Dominguez, 2019 COA 78, ¶ 13.

¶7 “[W]e review nonconstitutional trial errors that were preserved

by objection for harmless error,” meaning “we reverse if the error

‘substantially influenced the verdict or affected the fairness of the

trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12 (quoting

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

¶8 We review unpreserved errors for plain error and reverse such

errors only if they “so undermined the fundamental fairness of the

trial itself so as to cast serious doubt on the reliability of the

3
judgment of conviction.” Hagos, ¶ 14 (quoting People v. Miller, 113

P.3d 743, 750 (Colo. 2005)).

III. Admitting Evidence under the Res Gestae Doctrine

A. Additional Background

¶9 The district court held a pretrial hearing on the prosecution’s

“Notice of Intent to Introduce Res Gestae and 404(B) Evidence” and

Germanson’s response to the notice. The prosecution sought to

introduce text messages and telephone calls between R.T. and

Germanson in the two days leading up to the assault as res gestae

and CRE 404(b) evidence.

¶ 10 The court found that the communications evinced

Germanson’s “motive, opportunity, intent, and preparation” for the

charged assaults and that the communications were “res gestae of

the events and the incidents in this case as alleged in the

information and complaint.” It also found that, under People v.

Spoto, 795 P.2d 1314, 1318 (Colo. 1990), the communications

related to a material fact, were logically relevant and had a tendency

to make the material fact’s existence more or less probable than

without the communications, and were not being submitted to

establish Germanson’s bad character. Considering all the evidence,

4
the court found that the communications’ probative value

outweighed the danger of unfair prejudice and concluded they were

also admissible under CRE 404(b).

¶ 11 Later, Germanson filed a motion in limine in which he asked

the court to provide a contemporaneous limiting instruction before

receiving any evidence under CRE 404(b). The court denied

Germanson’s request without prejudice, reasoning that the request

was premature, and said it would “consider a limiting instruction if

and when testimony [was] introduced and if and when [it]

determine[d] that an . . . instruction [was] appropriate.” During the

jury instruction conference, after the court admitted the

communications into evidence, Germanson proposed an instruction

to limit the communications’ purpose under CRE 404(b). The court

rejected the proposed limiting jury instruction and found that the

communications were “res gestae and not [CRE] 404(b)” evidence.

B. Applicable Legal Principles

¶ 12 “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). However, under CRE 404(b)(2), “[t]his evidence may be

5
admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.”

¶ 13 “Res gestae evidence includes the circumstances, facts and

declarations which arise from the main event and serve to illustrate

its character.” People v. Quintana, 882 P.2d 1366, 1373 (Colo.

1994), abrogated by Rojas v. People, 2022 CO 8. Res gestae

evidence “also includes evidence that is closely related in both time

and nature to the charged offense.” Id.

¶ 14 After the court entered Germanson’s judgment of conviction,

the supreme court abolished the res gestae doctrine in criminal

cases, recognizing “an intrinsic-extrinsic distinction, with extrinsic

acts falling under Rule 404(b) and intrinsic acts falling outside the

Rule’s scope.” Rojas, ¶¶ 41, 44.

C. Preservation

¶ 15 Germanson contends that he preserved his objections to the

court’s admitting the evidence of the text messages and calls under

the res gestae doctrine with his motion in limine, the court’s ruling,

and the proposed limiting instruction he tendered during the jury

instruction conference. The People agree that Germanson

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preserved his argument regarding the text messages but disagree

that he preserved his arguments challenging the admission of

evidence regarding the number of text messages and phone calls

leading up to the assault and testimony concerning certain of the

text messages. The People also assert that Germanson did not

request a contemporaneous limiting instruction at the time the

court admitted the text messages and phone calls into evidence.

D. Analysis

¶ 16 The record shows that Germanson did not object to the

prosecution’s line of questioning about the number of text messages

or phone calls, nor did he request a contemporaneous limiting

instruction when the prosecution introduced evidence regarding

such communications. Also, when Germanson requested at a

pretrial hearing a limiting instruction regarding CRE 404(b)

evidence, the court denied the request without prejudice, stating

that it would “consider a limiting instruction if and when testimony

[was] introduced.” But Germanson never requested such a limiting

instruction when the prosecution introduced testimony and exhibits

regarding the text messages and phone calls, and he did not restate

his request until the evidence had closed.

7
¶ 17 So we conclude that Germanson did not preserve his

contentions about the number of text messages and phone calls

leading up to the assault and the lack of a limiting instruction. We

therefore apply the plain error standard in reviewing Germanson’s

contentions regarding those communications. But because

Germanson preserved his argument that the court erred by

admitting the text messages, such argument is subject to a

harmless error standard of review.

¶ 18 Germanson contends that, after Rojas, courts must determine

whether evidence previously deemed res gestae is intrinsic or

extrinsic to the charged offense. He argues that, because the

communications leading up to the assault were extrinsic to the

charges he faced and implied bad character, the court erred by

admitting the evidence as res gestae. And he argues that the court

infringed on his rights to due process and a fair trial by admitting

evidence of prior bad acts without a limiting instruction because

such evidence allowed the jury to infer guilt based on his purported

character. The People assert that the communications are intrinsic

evidence or otherwise admissible under CRE 404(b).

8
¶ 19 Because the district court conducted a sufficient analysis

under Spoto during the pretrial hearing to permit admitting the

communications as CRE 404(b) evidence, supra Part III.A, we need

not address the evidence’s admissibility under Rojas. So we discern

no error in the court’s admitting the communications under CRE

404(b) despite its ruling that it admitted them as res gestae. See

People v. Dyer, 2019 COA 161, ¶ 39 (“[A]n appellate court may

affirm a lower court’s decision on any ground supported by the

record, whether relied upon or even considered by the trial court.”).

¶ 20 We also reject Germanson’s contention that the court infringed

on his right to due process and a fair trial by declining to provide

the jury with a limiting instruction. Germanson failed to request a

limiting instruction contemporaneously when the court admitted

the text messages and phone calls. And the court must do so only

when a defendant requests such an instruction. Rojas, ¶ 27 (“If a

court determines the evidence is admissible, the court must also,

upon request, contemporaneously instruct the jurors of the limited

purpose for which the evidence may be considered.”) (emphasis

added). Accordingly, we discern no error, let alone plain error, in

9
the court’s declining to give the jury a limiting instruction after the

close of evidence.

IV. Expert Testimony

A. Applicable Legal Principles

1. Crim. P. 16 Disclosure

¶ 21 Crim. P. 16(I)(d)(3) addresses discretionary disclosures in

criminal cases and states that

[w]here the interests of justice would be
served, the court may order the prosecution to
disclose the underlying facts or data
supporting the opinion in that particular case
of an expert endorsed as a witness. If a report
has not been prepared by that expert to aid in
compliance with other discovery obligations of
this rule, the court may order the party calling
that expert to provide a written summary of
the testimony describing the witness’s
opinions and the bases and reasons therefor,
including results of physical or mental
examination and of scientific tests,
experiments, or comparisons. The intent of
this section is to allow the defense sufficient
meaningful information to conduct effective
cross-examination under CRE 705.

¶ 22 While disclosures under Crim. P. 16(I)(d)(3) are discretionary,

it is “better practice for the prosecution to specifically identify . . .

an expert witness.” People v. Greer, 262 P.3d 920, 930 (Colo. App.

2011).

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2. CRE 702

¶ 23 Expert testimony is admissible under CRE 702 if the proffered

testimony is reliable, the expert is qualified to opine on such

matters, and the expert testimony is relevant. People v. Shreck, 22

P.3d 68, 77 (Colo. 2001). A trial court’s reliability inquiry “should

be broad in nature and consider the totality of the circumstances of

each specific case.” Id. at 78; see Brooks v. People, 975 P.2d 1105,

1114 (Colo. 1999) (experience-based expertise is subject to the

standards of CRE 702). And expert testimony is relevant —

meaning it is useful to the jury — when it assists the jury “to either

understand other evidence or to determine a fact in issue.” People

v. Ramirez, 155 P.3d 371, 379 (Colo. 2007). A court must balance

its discretion to allow expert witness testimony with its obligation to

ensure that the probative value of the expert’s testimony is not

substantially outweighed by unfair prejudice. See id.

B. Scope of the DV Expert’s Testimony

1. Additional Background

¶ 24 Before trial, Germanson requested an order requiring the

prosecution to disclose certain materials and information related to

any expert witness the prosecution may endorse. And before trial,

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the prosecution filed an “Endorsed List of Witnesses” (the witness

list) that included the DV expert, the DV expert’s curriculum vitae,

and a statement of her opinions. In the statement, the DV expert

said that she usually testified regarding “general information about

domestic violence” and identified eight specific issues regarding

domestic violence, including “pattern of abuse” and “domestic

violence dynamics.”

¶ 25 Germanson objected to the DV expert’s endorsement as an

expert witness in the field of domestic violence under CRE 702 and

requested a pretrial hearing on the proper scope of the DV expert’s

testimony. Among other points, he argued that, because R.T. had

“specifically reported that there were not prior acts of domestic

violence” in her relationship with Germanson, the DV expert’s

proposed testimony regarding the pattern of abuse and domestic

violence dynamics would unduly prejudice Germanson by allowing

the jury to infer past acts of domestic violence.

¶ 26 As relevant here, in its response to Germanson’s objection, the

prosecution argued that “[t]he defendant’s power and control over

the victim helps to explain behaviors that, when viewed in isolation,

might conflict with what an ordinary juror might intuitively expect.”

12
The prosecution provided examples of such behaviors, such as

Germanson (1) ordering R.T. to make him food; (2) isolating R.T.

from her family; (3) prohibiting R.T. from going to work; (4) calling

R.T. repeatedly on the phone; (5) making demands of R.T. regarding

her behavior and her role as his girlfriend; and (6) threatening to

harm himself with his gun. The prosecution argued that “[a]ll of

these behaviors [were] part of a power and control dynamic and

help to explain certain counter-intuitive dynamics and behaviors

exhibited by the victim, which could not be explained without

explicit reference to the power and control dynamic and cycle of

violence.”

¶ 27 At the hearing on Germanson’s objection to the DV expert’s

testimony, the court ruled as follows:

[T]he pattern of abuse and dynamics and the
cycle of violence and pattern of abuse, even if
this is the first act, doesn’t preclude the
testimony. Rather, as I understand it from the
disclosures, the facts in this case, and my
understanding of [this] witness[] in relation to
the Cooper2 case, the dynamics of power and
control and mechanism of power doesn’t
necessarily need to be predicated upon a prior
act of domestic violence but can be explained

2 The court was referencing People v. Cooper, 2021 CO 69.

13
as part of a continuum which culminates in an
act of domestic violence.

Based on my understanding of [the DV
expert’s] background and training, education,
and experience, she will be admitted — or will
be allowed, so long as appropriate foundation
is laid, because I do believe it fits this case
based on my understanding of the facts as well
as applying the Shreck analysis. I do believe
that it is permissible under [CRE] 702 as well
as 401 and 402.

¶ 28 At trial, the prosecutor asked the DV expert on direct

examination, “how do things like male privilege or gender roles fall

under the dynamic of power and control?” Defense counsel

objected and argued that the topic exceeded the scope of the

prosecution’s disclosure for the DV expert. The court overruled the

objection and permitted the DV expert to testify about gender roles

and power dynamics.

2. Analysis

¶ 29 Germanson contends that the court erred by allowing the DV

expert to testify about male privilege and gender roles because the

prosecution did not disclose those topics before trial. He contends

that the DV expert’s testimony on those topics surprised defense

counsel and impaired counsel’s ability to vigorously cross-examine

14
the DV expert and present contrary evidence. And he asserts that

the court deprived him of a fair trial by allowing the DV expert to

provide the undisclosed opinions. We are unpersuaded.

¶ 30 The People argue that, in her pretrial statement, the DV expert

disclosed that she would testify regarding power and control

dynamics in domestic violence relationships, including tactics

offenders may use to maintain power and control. They also argue

that the DV expert did not claim that her statement contained an

exhaustive list of the domestic violence topics on which she might

testify. And the prosecution provided specific examples of

Germanson’s behavior, including ordering R.T. to make him food

and commenting about R.T.’s role as his girlfriend. The People also

argue that in his previous objection to a different domestic violence

expert, Germanson had cited People v. Cooper, 2019 COA 21

(Cooper I), which was later reversed by People v. Cooper, 2021 CO

69 (Cooper II), and had acknowledged the “Power and Control

Wheel” and the use of male privilege dynamics.

¶ 31 Notably, at the pretrial hearing at which the court decided that

the DV expert could provide opinion testimony on domestic violence

so long as the prosecutor laid a proper foundation, the court cited

15
and relied on Cooper II and Shreck. In Cooper II, ¶ 52, the supreme

court held that “generalized expert testimony fits a case if it has a

sufficient logical connection to the factual issues to be helpful to the

jury while still clearing the ever-present CRE 403 admissibility bar.”

And the opinion in Cooper II, ¶¶ 22-23, reproduces the “Power and

Control Wheel,” a tool “developed by social scientists to explain the

common dynamics of domestic violence,” including male privilege.

In their discussion of the court’s reliance on Cooper II when it ruled

on Germanson’s pretrial motion regarding the scope of the DV

expert’s testimony, the People cite Phillips v. People, 2019 CO 72,

¶ 36, for the proposition that defense counsel is presumed to know

substantive law.

¶ 32 Given the pretrial pleadings and hearing, which included the

prosecution’s express identification of Germanson’s behavior

demanding that R.T. cook for him and fulfill her role as a girlfriend,

defense counsel’s acknowledgment of the Power and Control Wheel

tool that includes male privilege, and the court’s reliance on Cooper

II, we cannot conclude that the prosecution’s questions to the DV

expert about gender roles and male privilege surprised defense

counsel. And if defense counsel was truly surprised by the elicited

16
testimony and believed it was prejudicial, counsel could have

contemporaneously asked the court for a continuance. See People

v. Brown, 313 P.3d 608, 617 (Colo. App. 2011) (“Defendant’s failure

to request a continuance belies any claim that he was surprised or

prejudiced by the detective’s testimony.”); People v. Graham, 678

P.2d 1043, 1047-48 (Colo. App. 1983); People v. Anderson, 837 P.2d

293, 299 (Colo. App. 1992) (“[Any] claim by the defendant at the

appellate level that he was unfairly surprised and unable to prepare

adequately for cross-examination is thoroughly discredited by his

failure to move for a continuance at the trial level.” (quoting

Graham, 678 P.2d at 1048)); see also United States v. McPartlin, 595

F.2d 1321 (7th Cir. 1979) (failure of defendants to renew request for

a continuance thoroughly discredits their assertion that they were

prejudiced by the timing of disclosure).

¶ 33 We also reject Germanson’s argument that the prosecution

violated Crim. P. 16(I)(d)(3) by failing to expressly include the topics

of gender roles and male privilege in the DV expert’s statement,

even though it referred to domestic violence dynamics.

Germanson’s argument construes the discretionary disclosure rule

too restrictively. Crim. P. 16(I)(d)(3) expressly provides that “[t]he

17
intent of this section is to allow the defense sufficient meaningful

information to conduct effective cross-examination.” (Emphasis

added.) Sufficient meaningful information does not equate to an

exhaustive list of all topics on which the expert witness may opine.

Rather, the rule permits the court to order the prosecution “to

provide a written summary of the testimony describing the witness’s

opinions and the bases and reasons therefor.” Crim. P. 16(I)(d)(3)

(emphasis added); Black’s Law Dictionary 1742 (12th ed. 2024)

(defining the noun “summary” as “[a]n abridgement or brief”).

Because the DV expert’s statement summarized her anticipated

testimony and referred to domestic violence dynamics, we conclude

that the prosecution complied with its obligation under Crim. P.

16(I)(d)(3) by providing Germanson with sufficient meaningful

information to allow him to conduct an effective cross-examination

of the DV expert.

C. SANE’s Testimony

1. Additional Background

¶ 34 The prosecution also endorsed a SANE as an expert witness in

its witness list and specified her expertise as “Sexual Assault and

Forensic Examinations to include Strangulation.” A few weeks after

18
filing the witness list, the prosecution filed a “Notice of [the SANE’s]

Expert Opinion Letter Re: Strangulation.” And a couple of days

after that, the prosecution filed a document entitled “[SANE’s]

Expert Summary,” which identified the SANE’s experience regarding

strangulation. Germanson objected to the SANE’s proffered

testimony, specifically regarding strangulation, and requested a

hearing.

¶ 35 After holding a hearing at which the prosecution and

Germanson presented arguments regarding the scope of the SANE’s

testimony, the court ruled as follows:

With respect to the science of trauma,
assuming [the SANE] has sufficient knowledge
or experience and training, that is something
that fits this case, assuming that an
appropriate foundation is laid and it is relevant
to material not outweighed by prejudice under
[CRE] 403, and I’ll require counsel to make an
appropriate objection if and when the opinions
are elicited. That is something that I do
believe, employing a flexible approach, satisfies
the Shreck analysis and all . . . four prongs of
the analysis, including the mechanism of
injury, again, assuming that it fits this case.

¶ 36 At trial, the prosecution offered the SANE as an expert in

sexual assault and forensic examinations, including strangulation.

Before the court accepted the SANE as an expert, defense counsel

19
conducted voir dire and asked the SANE whether she was “able to

make a diagnosis for any issues related to strangulation[] or [was] a

doctor required to do that?” The SANE responded that “[t]he doctor

generally [did] that,” and said that SANEs do not typically diagnose

patients. Following the voir dire, defense counsel said he “ha[d] no

objection to the expert being proffered in those two areas.”

¶ 37 But when the SANE testified about strangulation, defense

counsel objected as follows:

[The prosecutor:] So even if you didn’t see any
marks or swelling, you’re relying on a patient
report in that case?

[SANE:] Correct.

[The prosecutor:] Okay. So based on the
symptoms [R.T.] reported and the injuries that
you observed, would you say those are
consistent with strangulation?

[SANE:] Yes.

[Defense counsel:] Objection.

[The Court:] The basis?

[Defense counsel:] Improper opinion for this
witness. It also comments on the credibility [of
R.T.].

[The court:] Overruled

[The prosecutor:] So that was a “yes”?

20
[SANE:] Yes.

2. Preservation

¶ 38 Based on defense counsel’s objection noted above, Germanson

contends that he preserved his argument regarding the scope of the

SANE’s expertise and that her testimony improperly commented on

R.T.’s credibility. The People disagree because Germanson’s

contentions rely on his assertion that the court erred by failing to

make specific findings under Shreck — an issue that Germanson

did not raise in his trial objection.

3. Analysis

a. Scope of the SANE’s Testimony

¶ 39 We conclude that Germanson preserved his argument that the

SANE’s testimony was outside the scope of her expertise. Before

trial, Germanson objected to the SANE’s endorsement as an expert

regarding strangulation and cited Shreck. And at trial, defense

counsel contemporaneously objected to the SANE’s testimony

regarding strangulation. Thus, we employ a harmless error

standard of review. Hagos, ¶ 12.

¶ 40 Germanson contends that the court erred by not subjecting

the SANE’s testimony regarding strangulation to a Shreck analysis

21
when he objected to the testimony at trial. But his argument fails

to acknowledge that the court conducted a Shreck analysis at the

pretrial hearing. Also, his contention on appeal is contrary to

defense counsel’s concessions at the pretrial hearing. At the

pretrial hearing, defense counsel said,

I have no objection to [the SANE’s]
qualifications. I have no objection to her
testifying as to signs and symptoms of
strangulation, what was observed when she
conducted a strangulation examination in this
case. She also has proffered expert testimony
such as that because the mechanism of
strangulation is preventing blood or airflow as
opposed to blunt force trauma, bruising may
not occur. I have no objection to that type of
testimony.

¶ 41 The record supports a finding that, as CRE 702 requires, the

SANE had the necessary knowledge, experience, training, and

education to form an opinion on and testify regarding strangulation.

And the court conducted a Shreck analysis at the pretrial hearing

when Germanson initially objected to the SANE’s expertise

regarding strangulation. The court noted that the prosecution

alleged that Germanson had strangled R.T. and, assuming the

SANE had sufficient knowledge or experience and training, she

could testify regarding R.T.’s strangulation as long as the

22
prosecution laid an appropriate foundation and the relevance of the

testimony was not outweighed by prejudice under CRE 403.

Accordingly, we conclude that the court did not abuse its discretion

by permitting the SANE to testify as an expert regarding

strangulation.

b. Commenting on R.T.’s Credibility

¶ 42 Defense counsel objected at trial to the SANE’s testimony

about strangulation because it “comment[ed] on the credibility [of

R.T.].”

¶ 43 “Neither a lay witness nor an expert witness may give opinion

testimony with respect to whether a witness is telling the truth on a

specific occasion.” People v. Lafferty, 9 P.3d 1132, 1135 (Colo. App.

1999). “However, under CRE 702, an expert may testify concerning

whether the victim’s behavior or demeanor is consistent with that of

typical victims of abuse.” People v. Jenkins, 83 P.3d 1122, 1127

(Colo. App. 2003). And “an expert witness may base an opinion on

facts or data perceived by or made known to him or her at or before

the hearing.” Id. (citing CRE 703).

¶ 44 Again, Germanson’s contention on appeal is contrary to

defense counsel’s pretrial hearing statement that “[the SANE] can

23
testify as to the injuries that were present or not present and

possible reasons why those injuries were present or not present in

this case.”

¶ 45 The SANE testified about her examination of R.T., which

included a physical exam that revealed R.T. had a bruise on the left

side of her jaw and swelling of her jaw. The SANE also observed

redness in the middle area of R.T.’s neck and a small bruise on

R.T.’s left upper chest. In addition, she also testified about R.T.’s

self-reported information regarding strangulation, such as

coughing, hoarseness in her voice, and tenderness in her jaw. And

the SANE testified that a patient’s self-reported symptoms help

guide the provider’s medical treatment and exam.

¶ 46 At the conclusion of the SANE’s testimony about her

examination of R.T., the prosecution asked, “So based on the

symptoms [R.T.] reported and the injuries that you observed, would

you say those are consistent with strangulation?” Defense counsel

objected that the testimony was an “[i]mproper opinion for [the

SANE]. It also comments on the credibility.”

¶ 47 We have concluded that the court did not err by qualifying the

SANE as an expert in sexual assault forensic examinations,

24
including strangulation. Because the SANE’s expertise included

strangulation, she could properly opine based on the facts or data

in this case that she used to guide her medical treatment and exam,

including her physical examination of R.T. and R.T.’s self-reported

symptoms. See CRE 703 (“The facts or data in the particular case

upon which an expert bases an opinion or inference may be those

perceived by or made known to the expert at or before the hearing.

If of a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject, the facts or data

need not be admissible in evidence in order for the opinion or

inference to be admitted.”); see also Jenkins, 83 P.3d at 1127.

¶ 48 We conclude that the SANE did not comment on R.T.’s

credibility when testifying that R.T.’s reported symptoms and the

injuries that the SANE observed were consistent with strangulation.

Instead, the SANE stated an opinion or inference based on the facts

or data in the case that she perceived or that were made known to

her at or before the trial.

V. Cumulative Error

¶ 49 Finally, Germanson argues that reversal is warranted under

the cumulative error doctrine. To reverse based on cumulative

25
error, we “must identify multiple errors that collectively prejudice

the substantial rights of the defendant, even if any single error does

not.” Howard‑Walker v. People, 2019 CO 69, ¶ 25. We need not

conduct a cumulative error analysis because we have concluded

that the district court did not err. See People v. Conyac, 2014 COA

8M, ¶ 152 (“The doctrine of cumulative error requires that

numerous errors be committed, not merely alleged.”).

VI. Disposition

¶ 50 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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