Colorado’s second-highest court overturned a man’s assault conviction and seven-year prison sentence last week, concluding an Adams County judge admitted improper testimony from a nurse who documented the victim’s account.

After the alleged assault, the victim went to a hospital by ambulance. She spoke to an emergency medical technician about her injuries, which was recorded on the body-worn camera of a police officer. After receiving treatment, the victim traveled to a second hospital where she spoke with a forensic nurse examiner.

Prosecutors were unsuccessful at getting the victim to testify at the 2022 trial of defendant Donald Valentino Montoya. Instead, jurors saw the body cam video and heard the forensic nurse read the description the victim had given her of the assault. According to the secondhand narrative:

• Montoya accosted the victim while drunk

• He pushed her down and choked her

• He took the phone from her before she could call police

• He punched her

The defense previously attempted to block the statements the victim made to the forensic nurse and EMT on the grounds that they violated Montoya’s constitutional right to confront the witnesses against him. Further, they were hearsay, meaning out-of-court statements aimed at proving the truth.

Then-District Court Judge Roberto Ramírez disagreed. He determined the statements were “non-testimonial,” meaning their primary purpose was not to create a substitute for trial testimony. Instead, the victim made her statements in the context of medical diagnosis and treatment. Therefore, they were exempt from the prohibition on hearsay and did not violate Montoya’s confrontation rights.

On appeal, Montoya argued those conclusions were faulty.

“The forensic examination was not requested by a physician or other medical professional, but rather by a law enforcement officer,” wrote attorney Tanja Heggins. “Under the facts present here, it is clear that (the forensic nurse) was gathering information either to pass along to law enforcement or to prepare herself to testify in a criminal proceeding, as she indeed did in Mr. Montoya’s trial.”

Assistant Attorney General Allison S. Block maintained the victim’s conversations with the forensic nurse “were to assess the victim’s physical and mental health in the aftermath of an alleged assault to assist in making a proper diagnosis for care and treatment,” and not investigative.

But a three-judge Court of Appeals panel partially agreed with Montoya.

The body cam video of the victim’s responses to the EMT was valid evidence, wrote Judge Christina F. Gomez in the July 17 opinion, because the victim mentioned the assault while answering a comprehensive set of questions about her injuries.

While a police officer “happened to be present, the victim was communicating primarily with the EMT, a medical provider,” wrote Gomez.

The same was not true of the forensic nurse, she continued.

“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 (forensic nurse),” Gomez wrote. “Therefore, a reasonable person in the victim’s position would understand the (forensic nurse’s) role as separate from that of the other providers.”

Moreover, the victim had signed the forensic nurse’s exam form consenting to the “release and disclosure of the findings” to law enforcement.

Since the forensic nurse’s conversation with the victim created trial testimony, the statements were inadmissible because the defense was not previously able to cross-examine the victim about them. The erroneously admitted testimony mattered, Gomez wrote, because it provided the only detailed account of the alleged assault.

The panel reversed Montoya’s conviction and ordered a new trial.

The case is People v. Montoya.