SUMMARY

December 19, 2019

2019COA183

No. 16CA0746, People v. Bobian — Evidence — Opinions and 

Expert Testimony — Testimony by Experts

Where a trial court allowed a police detective witness to offer 

undisclosed expert testimony about blood residue and tool 

markings evidence, a division of the court of appeals holds that the 

error was harmless under the circumstances. The division further

concludes that where the detective served as the prosecution’s 

advisory witness and testified about the consistency of the 

eyewitnesses’ trial testimony with their statements just after the 

charged incident, any error in admitting the testimony did not 

amount to prejudicial plain error that would warrant reversal. The 

division also rejects claims of prosecutorial misconduct.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
The special concurrence discusses the propriety of allowing a 

police detective to testify about the consistency between 

eyewitnesses’ statements at a crime scene and their testimony at 

trial.
COLORADO COURT OF APPEALS 2019COA183

Court of Appeals No. 16CA0746

Adams County District Court No. 15CR1426

Honorable Katherine R. Delgado, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Edward Bobian,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE TERRY

Welling, J., concurs

Berger, J., specially concurs

Announced December 19, 2019

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Michael Edward Bobian, appeals the judgment of 

conviction entered on jury verdicts finding him guilty of attempted 

second degree murder and first degree assault. We affirm.

¶ 2 We consider and reject Bobian’s arguments that his conviction 

should be overturned because the trial court erred by 

• admitting improper expert testimony about blood residue 

and tool markings; and

• permitting prosecutorial misconduct.

¶ 3 The special concurrence discusses the propriety of allowing a 

police detective to testify about the consistency between 

eyewitnesses’ statements at a crime scene and their testimony at 

trial.

I. Background

¶ 4 The charges stemmed from an altercation during a party at 

Stephanie Torres’s apartment. Lindsey Collins, who had been 

staying with Torres for a few days, called a friend for a ride. The 

friend in turn called Bobian and asked him to pick up Collins from 

Torres’s apartment. 

¶ 5 Bobian and three of his friends entered Torres’s apartment 

unannounced. Annoyed by the presence of strangers in her home, 
2

Torres became belligerent and told them to leave. A fight then 

broke out between Torres and Bobian’s friends. Torres screamed

for the victim, T.H., who was outside. The events that took place 

next were disputed at trial. 

¶ 6 The victim testified that he ran through the front door to 

Torres’s aid, and Bobian preemptively struck him on the head with 

a hatchet. After a struggle, the victim was able to get control of the 

hatchet from Bobian, and Bobian and his friends then fled the 

apartment.

¶ 7 Collins took the stand for the defense and gave a different 

account. She testified that when the victim ran into the apartment 

and found Torres being attacked by Bobian’s friends, the victim

struck Bobian from behind and a second fight broke out. Collins 

testified that the victim continued to attack Bobian, who was 

squatting on the ground. At some point, Collins realized that

Bobian and the victim were fighting over a hatchet, and that the 

victim appeared injured.

¶ 8 The jury acquitted Bobian of attempted first degree murder 

but found him guilty of attempted second degree murder and first

degree assault. 
3

II. Expert Testimony

¶ 9 Bobian contends that the trial court erred by admitting the 

testimony of the State’s lead detective about blood patterns and tool 

markings without qualifying him as an expert. We conclude that 

any error was harmless.

A. Standard of Review and Applicable Law

¶ 10 We review a trial court’s evidentiary rulings for an abuse of 

discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial 

court abuses its discretion when its ruling is manifestly arbitrary, 

unreasonable, or unfair, or when it misapplies the law. Rains v. 

Barber, 2018 CO 61, ¶ 8. We will reverse only if “there is a 

reasonable probability that [an error] contributed to [the] 

defendant’s conviction by substantially influencing the verdict or 

impairing the fairness of the trial.” People v. Casias, 2012 COA 

117, ¶ 61.

¶ 11 In determining whether testimony is lay or expert testimony, 

the court must look to the basis for the opinion. Venalonzo v. 

People, 2017 CO 9, ¶ 23. If the witness provides testimony that 

could be expected to be based on an ordinary person’s experiences 

or knowledge, then the witness is offering lay testimony. Id. On the 
4

other hand, if the witness provides testimony that could not be 

offered without specialized experiences, knowledge, or training, then 

the witness is offering expert testimony. Id. 

¶ 12 Police officers may testify as lay witnesses based on their 

perceptions, observations, and experiences. People v. Veren, 140 

P.3d 131, 137 (Colo. App. 2005). But where an officer’s testimony 

is based on specialized training or education, the officer must be 

properly qualified as an expert. Id. 

¶ 13 In People v. Ramos, 2017 CO 6, ¶ 9, our supreme court held 

that an ordinary citizen would not be expected to have the 

experience, skills, or knowledge to differentiate reliably between 

cast-off blood and blood transfer.

B. Additional Facts

¶ 14 Witnesses for both the State and the defense testified that they 

saw the victim throw the hatchet at the front door just as it closed 

after Bobian exited. The victim, however, could not recall throwing 

the hatchet. 

¶ 15 Lead Detective Frederick Longobricco was the prosecution’s 

advisory witness and was present throughout trial. He testified 

regarding the blood and tool markings he saw on the front door, as 
5

well as the damage to the wall that was allegedly caused during the 

altercation. He had the following exchange with the prosecutor 

about blood patterns: 

Q: [T]here’s actually kind of a description for 

what blood looks like when it’s hit against the 

door like that. What’s that kind of blood 

called?

A: I have received training in blood pattern 

analysis and depending on how blood strikes 

an object it will tell you —

¶ 16 At that point, defense counsel objected to the testimony as 

expert testimony. After the prosecutor responded that the detective 

was just describing what he had done as a “regular police officer,”

the court overruled the objection and Detective Longobricco testified 

as follows:

A: So when blood strikes a surface, how that 

blood reacts to the surface will tell you most 

likely how that . . . blood traveled. So in here 

when you see a close[-]up of it, the blood 

showed patterns of coming down, striking 

down.

Q: Okay. And is that called cast[-]off?

A: Yes. 

Q: Also there’s kind of a hole back there by —

behind the kitchen or behind the table there 
6

[and] you also took note of that as well, didn’t 

you?

A: Correct. There’s an indentation or a hole in 

the wall, in the drywall. And there appears to 

be blood next to it. The blood next to it 

appears to be a smear of some sort. That 

means that blood was on an object, came in 

contact with another object. It didn’t actually 

travel through the air. We didn’t know why 

that hole in the wall was there. That was one 

of the discussions I had with [another 

officer]. . . .

. . . .

Q: [L]ooking at [exhibit] 27, [i]s this again kind 

of the pattern that you’re talking about here 

with the door?

A: Correct. This is the slit that we see. We

believed that was connected to the incident. 

And then the cast[-]off blood pattern as it 

travels down, you can see a thinner tail at the 

top — or a thinner [tail] on one side of it and a 

deeper or more large base on the end. . . .

. . . .

Q: And you’re noting there both this kind of 

pattern of dashes straight down in the line in 

the left that’s seemed to being marked nick 

marks [sic] almost from something hitting it; is 

that right?

A: Correct. They were consistent with 

something striking . . . the door.

¶ 17 Detective Longobricco described the marks on the door:
7

A: This is the slit mark or the indentation at 

the top. This became my concern because I 

wanted to know if that was consistent with the 

stories that we were hearing in the interviews.

Q: And that’s the story that [Torres] said of 

[the victim] hitting the hatchet against the 

door?

A: Correct. I wanted to look at this and 

document it to see if it was consistent with a 

hatchet strike.

Q: Did you end up doing that?

A: Based on just the — my response as a 

police officer, I believed that it was consistent 

due to the width, the depth and the height was 

consistent [sic]. If somebody hit it with a 

sledge hammer . . . . 

¶ 18 At this point, defense counsel moved to strike this testimony 

as expert testimony, but the court overruled the objection. The 

detective then testified, “So if somebody hit it with a hammer or 

sledge hammer, it would leave a different type of mark, not a thin 

mark.” 

C. Discussion

¶ 19 Bobian contends that Detective Longobricco’s testimony about 

blood patterns and tool markings amounted to improper expert 
8

testimony. Though we agree that it was expert testimony and was 

improperly admitted, we conclude that the error was harmless. 

¶ 20 The detective’s reference to the blood evidence as “cast-off” 

required specialized knowledge that an ordinary person would not 

have, and he purported to rely on his training in blood pattern 

analysis. See Ramos, ¶ 9 (stating that an ordinary person without 

the testifying officer’s nineteen years of experience would not have 

been able to provide testimony distinguishing cast-off blood from 

blood transfer). Detective Longobricco’s testimony on this issue was 

therefore expert testimony, and the court erred by admitting his 

opinions about how the blood got onto the surface of the door,

whether it was “cast-off” blood or a “smear” of blood, and how the 

blood traveled when it hit the surface. See id. at ¶ 10 (a police 

detective’s testimony using technical terms — “spatter” versus 

“cast-off” — in describing blood was improper expert testimony 

requiring specialized knowledge “to ‘assist the trier of fact to 

understand the evidence or determine a fact in issue.’” (quoting 

CRE 702)).

¶ 21 Bobian contends that this error improperly conferred the “aura 

of expertise” on Detective Longobricco’s testimony without requiring 
9

the prosecution to qualify him as an expert witness. According to 

Bobian, this testimony bolstered the prosecution witnesses’ account

of the incident that Bobian had unexpectedly attacked the victim 

with a hatchet the moment the victim walked through the door. He 

also asserts that the blood on the door could have been used to 

refute the defense theory that the victim was hit in the kitchen,

where — according to Collins — the altercation occurred. 

¶ 22 The error in admitting this testimony was harmless. There 

was no dispute that Bobian struck the victim with the hatchet; the 

only dispute was whether he did so in self-defense. The pattern of 

blood on the door did nothing to answer that question. Even 

Bobian’s witness (Collins) testified that when the fight between the 

victim and Bobian moved closer to the front door, “that’s when we 

see the blood.” So, the presence of blood on the door did not assist 

the jury in determining which party’s version of events — the 

State’s or Bobian’s — was true. 

¶ 23 This circumstance distinguishes the case from Ramos

precisely because the blood patterns in Ramos were critical to how 

the defendant’s blood in that case got on the clothing of the victim. 

The Ramos victim testified that the defendant’s blood got on her 
10

clothing when he punched her, and this contrasted with the 

defendant’s testimony that the blood came from his injured, 

bleeding hand when he waved his hand around. Id. at ¶ 2. 

¶ 24 In Ramos, a detective testified that some of the defendant’s 

blood got onto the victim’s clothing from “transfer” (i.e., physical 

contact), and not as “cast-off” blood (i.e., from the defendant waving 

his hand around). Id. at ¶ 3. The detective there “opined that the 

blood on the victim’s hat was the result of physical contact and that 

the bloodied area ‘could be’ roughly the area of a fist.” Id. at ¶ 9. 

The supreme court reversed the conviction because “an ordinary 

citizen . . . would not have been able to provide the same 

conclusions.” Id. Thus, the distinction between “cast-off” and 

“spatter” blood would have made a difference in how the jury 

evaluated whether the defendant in Ramos struck the victim, as the 

prosecution asserted. 

¶ 25 Not so here, because it is undisputed that Bobian struck the 

victim with the hatchet. We conclude that the admission of the 

blood pattern testimony was therefore harmless.

¶ 26 Detective Longobricco’s testimony that he looked at the marks 

on the apartment door to see if they matched the witnesses’ 
11

statements was also harmless because it did not aid in proving or 

disproving self-defense. Instead, the testimony went only to 

whether the victim at some point hit the apartment door with the 

hatchet — a matter of no consequence to the self-defense issue.

¶ 27 Moreover, the prosecutor did not refer to Detective 

Longobricco’s blood or tool markings testimony in closing 

argument. Based on the circumstances of this case, we conclude 

that any error in admitting this testimony could not have affected 

the outcome of the trial. See Krutsinger v. People, 219 P.3d 1054,

1063 (Colo. 2009) (harmless error found where trial court’s error 

“did not substantially influence the verdict or affect the fairness of 

the trial proceedings”). 

III. Prosecutorial Misconduct

¶ 28 Bobian next contends that multiple incidents of prosecutorial 

misconduct warrant reversal. We disagree.

A. Standard of Review and Applicable Law

¶ 29 In evaluating a claim of prosecutorial misconduct, we first 

determine whether the conduct in question was improper based on 

the totality of the circumstances and, if so, we then determine 
12

whether such actions warrant reversal under the proper standard of 

review. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). 

¶ 30 Where, as here, a defendant does not object to the challenged 

conduct at trial, we review a prosecutorial misconduct claim for 

plain error. People v. Rhea, 2014 COA 60, ¶ 43. Plain error is 

obvious and substantial error that so undermined the fundamental 

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

of the judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14. 

To rise to the level of plain error, prosecutorial misconduct must be 

flagrant or glaringly or tremendously improper. People v. Weinreich, 

98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 

2005).

¶ 31 Prosecutors have a heightened ethical responsibility as 

compared with other lawyers. Domingo-Gomez v. People, 125 P.3d 

1043, 1049 (Colo. 2005). “[I]t is improper for a prosecutor[,] 

knowingly and for the purpose of bringing inadmissible matter to 

the jury’s attention[,] to ask a question which he knows will elicit an 

inadmissible answer.” People v. Oliver, 745 P.2d 222, 228 (Colo. 

1987).
13

¶ 32 Although a prosecutor, during closing argument, “has wide 

latitude and may refer to the strength and significance of the 

evidence, conflicting evidence, and reasonable inferences that may 

be drawn from the evidence,” People v. Walters, 148 P.3d 331, 334 

(Colo. App. 2006), the prosecutor may not misstate the law, use 

arguments calculated to inflame the passions and prejudices of the 

jury, People v. Samson, 2012 COA 167, ¶ 32, or express a personal 

opinion on the truth or falsity of witness testimony, Wilson v. 

People, 743 P.2d 415, 419 (Colo. 1987).

B. Discussion

¶ 33 Bobian contends that the prosecutor intentionally elicited 

inadmissible testimony while questioning Detective Longobricco and 

that certain arguments and statements made during closing 

argument amounted to prosecutorial misconduct. 

¶ 34 After reviewing the record, we see no error that would warrant

reversal as to the following instances raised by Bobian: 

• The prosecutor eliciting expert testimony from Detective 

Longobricco. We have concluded that the error in admitting 

this testimony was harmless, and we see no prejudicial error 
14

arising from the prosecutor’s questioning that elicited the 

testimony. See Hagos, ¶ 14.

• The prosecutor asking Detective Longobricco to opine on 

whether the prosecution witnesses’ testimony was consistent 

with the statements they gave on the night of the incident, and 

whether the witnesses’ statements were consistent with each 

other. Even assuming that the prosecutor’s question in this 

regard was improper, we conclude that it did not rise to the 

level of plain error. First, the question was not “flagrant or 

glaringly or tremendously improper,” and thus did not 

constitute plain error. People v. McMinn, 2013 COA 94, ¶ 58. 

Second, the detective did not testify about whether the 

witnesses had testified truthfully. See Venalonzo, ¶ 32 

(witnesses are prohibited from testifying that another witness 

was telling the truth on a particular occasion). And third, 

Detective Longobricco’s equivocal response mitigated any 

prejudice. When asked whether the witnesses’ testimony was 

consistent with their statements on the night of the incident, 

the detective answered, “For the most part, yeah.” We 

conclude that this answer did not so undermine the 
15

fundamental fairness of the trial as to cast serious doubt on 

the reliability of the judgment of conviction. See Hagos, ¶ 14.

• The prosecutor advising the jury during closing argument that 

it should consider the greater offenses before considering the 

lesser included offenses. True, Colorado is a “soft transition” 

jurisdiction, in which the jury need not unanimously acquit 

the defendant of the greater offense before considering the 

lesser included offenses. People v. LePage, 397 P.3d 1074, 

1077 (Colo. App. 2011), aff’d on other grounds, 2014 CO 3. 

But the prosecutor did not suggest that the jury had to acquit 

Bobian of the greater offenses before considering lesser 

offenses, and therefore did not misstate the law. See People v. 

Padilla, 638 P.2d 15, 17-18 (Colo. 1981) (finding no plain error 

in giving stock jury instruction on consideration of lesser 

included offense if jury did not find the defendant guilty of the 

charged offense, and stating, “it is not clear from the language 

of the instruction that the jurors would feel compelled to reach 

a unanimous decision on the greater offense before 

considering the lesser included offenses”). 
16

• The prosecutor stating during closing argument that “the 

actions of bringing a weapon into a fist fight are inherently not 

reasonable no matter what.” When considered in context, this 

isolated comment does not portray a categorical exception to

the degree of force that may be used in self-defense. The 

comment was inartful but permissible commentary on the 

evidence in this case and the State’s assertion of the 

unreasonableness of Bobian’s actions. See People v. Avila, 

944 P.2d 673, 676 (Colo. App. 1997) (“A reviewing court 

should examine alleged improper argument in the context of 

the prosecution’s closing argument as a whole.”); see also 

People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (a 

prosecutor in closing argument may ordinarily use rhetorical 

devices and a reviewing court considers the frequency of 

alleged misconduct). 

• The prosecutor stating during closing argument, “How do we 

know [Bobian is] the one who is not acting reasonably? 

Because he’s not sitting over there right now with a giant scalp 

laceration to the top of his head.” This comment related to the 
17

proportionality of Bobian’s physical response to what he 

claimed was a threat, and it was not improper.

• The prosecutor questioning Collins’s credibility during closing 

argument by referencing “the one true thing [Collins] said 

when she was sitting [on] that stand . . . ,” and “[h]er story 

that she came up with yesterday, . . . while [she was] sitting 

up there on the stand, that was kind of all brand new and we 

didn’t hear that at all through any of the officers, or anybody 

else . . . .” We disagree that these statements amounted to an 

expression of the prosecutor’s personal opinion of witness 

credibility. See Domingo-Gomez, 125 P.3d at 1051 (“[C]ounsel 

may properly argue from reasonable inferences anchored in 

the facts in evidence about the truthfulness of a witness’

testimony.”); see also United States v. Spain, 536 F.2d 170, 

174 (7th Cir. 1976) (where conflicts in the evidence exist and 

cannot be the result of honest mistake, each counsel is 

“entitled to argue that witnesses called by him had spoken the 

truth and those called by the other side had testified falsely”).

• The prosecutor commenting on the credibility of the State’s 

version of events by stating, “I apologize for the fact that I put 
18

up witness after witness who told you the same exact version 

of basically these events, right?” and “[t]he officers tell you 

basically the same version of events, as well.” These 

statements were not expressions of the prosecutor’s personal 

opinion of the credibility of the witnesses but were proper 

statements on the consistency of the evidence. See DomingoGomez, 125 P.3d at 1051-55.

• The prosecutor referring to Collins as “the homeless hero” and 

a “squatter with a heart of gold” during his closing argument. 

While these comments were unnecessary characterizations of 

the defense witness, they would not have led the jury to decide 

on an improper basis and do not rise to the level of 

prosecutorial misconduct. Cf. People v. McBride, 228 P.3d 216 

(Colo. App. 2009) (reviewing courts accord prosecutors the 

benefit of the doubt where remarks are simply inartful).

IV. Cumulative Error

¶ 35 Finally, Bobian argues that the trial court’s combined errors 

amounted to cumulative error. We have concluded that the error in 

admitting the blood pattern and tool marking testimony was 

harmless. And even assuming that the prosecutor’s question about 
19

the consistency of certain witnesses’ statements was also improper, 

we still conclude that the cumulative effect of the errors does not 

require reversal. We reach this conclusion because, as discussed 

above, the blood spatter and tool marking testimony did not relate 

to a material disputed issue, and the question about whether the 

witnesses’ trial testimony was consistent with their earlier 

statements elicited only an equivocal response. Moreover, the 

asserted errors would not have had a cumulative prejudicial effect

on “the fairness of the trial proceedings [or] the integrity of the factfinding process”; therefore, reversal is not warranted based on 

cumulative error. Howard-Walker v. People, 2019 CO 69, ¶ 24 

(quoting People v. Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 

(1980)).

V. Conclusion

¶ 36 The judgment of conviction is affirmed.

JUDGE WELLING concurs. 

JUDGE BERGER specially concurs.
20

JUDGE BERGER, specially concurring.

¶ 37 Is it permissible for a prosecutor to ask a police detective to 

testify at a criminal trial that the victim’s (or another witness’s) 

testimony and prior statements were consistent? The majority 

assumes, without deciding, that such testimony is impermissible. 

I think the question needs to be decided.

¶ 38 I begin with the black letter rule. “[N]either lay nor expert 

witnesses may give opinion testimony that another witness was 

telling the truth on a specific occasion.” People v. Wittrein, 221 P.3d 

1076, 1081 (Colo. 2009). This prohibition extends, for example, to 

comments on a witness’s sincerity, People v. Eppens, 979 P.2d 14, 

17 (Colo. 1999); believability, People v. Gaffney, 769 P.2d 1081,

1088 (Colo. 1989); or predisposition to fabricating allegations, 

People v. Snook, 745 P.2d 647, 649 (Colo. 1987). Further, the 

supreme court has “held that prosecutorial use of the word ‘lie’ and 

the various forms of ‘lie’ are categorically improper.” Wend v. 

People, 235 P.3d 1089, 1096 (Colo. 2010). 

¶ 39 It is no answer that the detective’s opinion may have made it 

easier for the jury to determine whether the statements and 

testimony were consistent. One of the jury’s fundamental tasks is 
21

to consider all of the testimony and to determine which version of 

the material events is more credible. COLJI-Crim. E:05 (2018). The 

jury heard all the out-of-court statements and the testimony, so 

comments on the consistency of that evidence did not provide the 

jury with any information beyond what it already had. Simply put, 

a jury does not need help determining whether statements were 

consistent, particularly from a witness who is obviously aligned 

with the prosecution. See People v. McFee, 2016 COA 97, ¶ 76 

(reasoning that detective’s opinion could not have been helpful 

because it was based on the same information the jury had). The 

admissibility inquiry should end there. See CRE 701 (limiting lay 

opinions to those that are helpful to the jury); CRE 702 (limiting 

expert opinions to those that assist the trier of fact). 

¶ 40 But there is a stronger reason to reject such opinions. They 

invariably constitute an indirect opinion on the credibility of the 

witness. The supreme court has made clear that indirect opinions 

on another witness’s credibility are subject to the same 

exclusionary rules as direct opinions. Venalonzo v. People, 2017 CO 

9, ¶ 32. 
22

¶ 41 The detective’s opinion regarding consistency was, in effect, 

nothing less than the detective telling the jury that the witness was 

truthful in her accounts of the relevant events. The Attorney 

General has not explained, and I cannot discern, any other 

probative purpose for this opinion testimony.

¶ 42 Moreover, the circumstances surrounding this testimony are 

more egregious than an off-the-cuff opinion regarding the credibility 

of another witness. Here, the detective expressing the opinion was 

the prosecution’s advisory witness in a case in which all other 

witnesses had been sequestered under CRE 615. This detective 

was the only witness in the entire case who was permitted to 

remain in the courtroom during the testimony of other witnesses. 

The prosecution leveraged this privilege (the purpose of which has 

nothing whatsoever to do with the giving of such opinions) to 

provide these prohibited opinions. 

¶ 43 In reaching my conclusions, I recognize that at least one 

division of this court has taken a different path. In People v. West, 

2019 COA 131, ¶ 37, a detective testified that the timing of text 

messages between the victim and the defendant was “consistent 

with” other portions of the victim’s testimony and the police contact 
23

with the victim and her mother. The detective also testified that 

events recited by the defendant in his text messages were 

“consistent with” other sources of information, including police 

records and the victim’s mother. Id.

¶ 44 In rejecting, on plain error review, the defendant’s argument 

that this testimony was improperly admitted, the West division 

reasoned that “the detective said nothing about the truth of 

testimony; instead the detective indicated only that certain 

statements did not conflict with other statements or evidence.” Id.

at ¶ 43. 

¶ 45 This analysis conflicts with the Colorado Supreme Court’s 

teachings that witnesses may not directly or indirectly testify about 

the truthfulness of another witness. See Wittrein, 221 P.3d at 1081. 

Instead, I agree with the courts in other jurisdictions that have 

prohibited such opinion testimony.

¶ 46 In Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (Ky. 

2005), the Kentucky Supreme Court held that it is improper for a 

witness to testify that another witness has made consistent 

statements, absent an express or implied charge of recent 

fabrication or improper influence. The court reasoned:
24

We perceive no conceptual distinction between 

testimony that repeats the witness’s prior 

consistent statement verbatim and testimony 

that the witness previously made statements 

that were consistent with her trial testimony. 

Either way, the evidence is offered to prove 

that the declarant’s trial testimony is truthful 

because it is consistent with her prior 

statements.

Id. 

¶ 47 In State v. McKerley, 725 S.E.2d 139, 142 (S.C. Ct. App. 2012), 

a forensic interviewer was permitted to testify that, “in forming her 

‘opinion as to whether . . . something happened,’ she considered 

whether the victim’s statements were ‘consistent with the other 

information’” she had on the case. Although the Court of Appeals of 

South Carolina acknowledged that the forensic interviewer never 

testified directly that she believed what the victim had stated, the 

court nevertheless concluded that “there is no way to interpret [the 

interviewer’s] testimony other than as her opinion that the victim 

was telling the truth.” Id.

¶ 48 Similarly, in State v. Jennings, 716 S.E.2d 91, 94 (S.C. 2011), 

the trial court permitted the State to introduce written reports of 

the forensic interviewer in which the interviewer stated that the 

“children provided ‘a compelling disclosure of abuse’ and provided 
25

details consistent with the background information received from 

mother, the police report, and the other two children.” The South 

Carolina Supreme Court concluded that “[t]here is no other way to 

interpret the language used in the reports other than to mean the 

forensic interviewer believed the children were being truthful.” Id. 

Accordingly, the court held the admission of the reports was 

error. Id. 

¶ 49 In my view, these cases were correctly decided and weigh 

heavily against a conclusion that West was correctly decided.1 

Accordingly, I would hold that a police officer may not testify that 

the victim’s (or another witness’s) testimony and prior statements 

were consistent. 

 1 A similar issue was addressed by the United States Court of 

Appeals for the Tenth Circuit in United States v. Toledo, 985 F.2d 

1462 (10th Cir. 1993). In a kidnapping case, the court addressed a 

psychiatrist’s testimony concerning the mental state of the victim. 

The psychiatrist opined that the victim’s “consistency in reporting 

the nature of her abduction, being taken against her free will at a 

train station [and other facts] . . . were consistent with a high 

likelihood that [the kidnapping] occurred.” Id. at 1469. The Tenth 

Circuit held that it was not plain error to allow the testimony but 

noted that the admissibility of this kind of opinion presented a 

“close question.” Id. at 1470.
26

¶ 50 I recognize that under some circumstances, a police officer’s 

belief regarding the consistency or inconsistency of a witness’s prior 

statements (or even the officer’s belief that the person was or was 

not telling the truth) might be relevant and admissible when the 

course of the police investigation is legitimately at issue. See, e.g., 

Davis v. People, 2013 CO 57, ¶ 19; People v. Robles-Sierra, 2018 

COA 28, ¶ 26. 

¶ 51 But caution is warranted. The Tenth Circuit has analyzed 

when the course-of-investigation exception is properly invoked. 

United States v. Cass, 127 F.3d 1218 (10th Cir. 1997). While 

acknowledging that the exception can allow for the admission of 

otherwise inadmissible evidence, the Tenth Circuit observed that 

“[c]ourts and commentators have recognized that out-of-court 

statements should not be admitted to explain why a law 

enforcement agency began an investigation if the statements 

present too great a danger of prejudice.” Id. at 1223.

¶ 52 McCormick on Evidence rightly criticized the “apparently 

widespread abuse” of this exception: 

In criminal cases, an arresting or investigating 

officer should not be put in the false position 

of seeming just to have happened upon the 
27

scene; he should be allowed some explanation 

of his presence and conduct. His testimony 

that he acted “upon information received,” or 

words to that effect, should be sufficient. 

Nevertheless, cases abound in which the 

officer is allowed to relate historical aspects of 

the case, replete with hearsay statements in 

the form of complaints and reports, on the 

ground that he was entitled to give the 

information upon which he acted. The need 

for the evidence is slight, the likelihood of 

misuse great.

2 McCormick on Evidence § 249, at 104 (John W. Strong ed., 4th ed. 

1992) (footnotes omitted), quoted in Cass, 127 F.3d at 1223.

¶ 53 Given this likelihood of misuse, the exception should only 

apply when the course of the police investigation is relevant at trial. 

Even then, a trial court must exercise sound discretion to limit 

such otherwise inadmissible evidence solely to the purposes 

underlying the course-of-investigation exception. 

¶ 54 For these reasons, I reject the Attorney General’s argument 

that the detective’s testimony “could be read” as permissible 

testimony about the course of the investigation. The Attorney 

General does not explain, and I cannot discern, how the course of 

the investigation was relevant or at issue. And, as discussed, the 

detective’s opinion testimony concerned the credibility of other 
28

witnesses, not the detective’s investigation. Therefore, the 

admission of the detective’s opinion that the victim’s prior 

statements and testimony were consistent constitutes error. 

¶ 55 Nevertheless, I agree with the majority that, as presented to 

us, the prosecutor’s elicitation of the detective’s opinion does not 

justify reversal under the plain error standard. While evidentiary 

error occurred, Bobian presents this as a matter of prosecutorial 

misconduct. The prosecutor’s elicitation of this opinion evidence 

was not “flagrant or glaringly or tremendously improper,” People v. 

McMinn, 2013 COA 94, ¶ 58, so reversal is not warranted. In light 

of West, the error was not plain under this standard.