People v. Murphy

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.

SUMMARY
March 21, 2019

2019COA39

No. 17CA0397 People v. Murphy — — Evidence — Opinions and
Expert Testimony — Opinion Testimony by Lay Witnesses

In this direct appeal of a defendant’s convictions for one count

of distributing methamphetamine to a minor and one count of

contributing to the delinquency of a minor, a division of the court of

appeals considers whether a lay witness may provide testimony

interpreting a witness’s body language.

The division determines that, pursuant to CRE 701 and

Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875, the trial

court abused its discretion in allowing a police officer testifying as a

lay witness to use his training and experience to interpret a

witness’s body language.

Accordingly, the division reverses and remands to the district

court for a new trial.
COLORADO COURT OF APPEALS 2019COA39

Court of Appeals No. 17CA0397
Mesa County District Court No. 16CR92
Honorable Lance Phillip Timbreza, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Justine Lynn Murphy,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Tow, J., concurs
Berger, J., specially concurs

Announced March 21, 2019

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Justine Lynn Murphy, appeals her judgment of

conviction entered on a jury verdict finding her guilty of distributing

methamphetamine and contributing to the delinquency of a minor.

She contends that the district court erred in permitting unendorsed

and unqualified expert testimony under the guise of lay opinion,

and that this testimony improperly commented on the meaning of

the body language of K.H., a prosecution witness. We reverse and

remand for a new trial.

I. Background

¶2 K.H., then fifteen, attended a concert with his thirty-five-year

old stepsister, Murphy, in January 2016. The following day, K.H.

met with his middle school counselor and assistant principal after

one of his teachers expressed concern because K.H. appeared ill.

K.H. disclosed to the counselor that he had used methamphetamine

the night before while partying with Murphy before the concert.

When the counselor asked K.H. if his sister “was a good person to

be hanging out with,” he responded, “no[,] because his sister does

meth and his stepmom uses heroin.” School officials searched

K.H.’s backpack and discovered drug paraphernalia and a small

amount of methamphetamine. They contacted K.H.’s father, J.H.,

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 and asked him to pick K.H. up from school. Thereafter, K.H. was

admitted to the local hospital for evaluation and recovery.

¶3 School officials also contacted a school resource officer,

Deputy Chad Searcy, regarding the information K.H. had offered

about his stepsister. Based on this information, Deputy Searcy

identified Murphy through law enforcement records and

investigative techniques.

¶4 After notifying both J.H. and K.H. that K.H. was not under

arrest and could cease the deputy’s questioning at any time,

another school resource officer, Deputy Mark Johnson, interviewed

K.H. from his hospital bed in the presence of J.H. Deputy Johnson

testified at trial that, when he asked where K.H. obtained the

methamphetamine, K.H. was not immediately forthcoming. In

response, Deputy Johnson asked, “Did you get it from [Murphy]?”

K.H. “did not deny right away. Instead, his body language changed.

He looked — had been looking at me as I was speaking to him. He

looked down and away.” Deputy Johnson testified that he

assumed, based on his training and experience, that K.H. did not

want to answer him and that the body language suggested an

affirmative answer. Deputy Johnson then asked K.H. if Murphy

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 sold it to him or gave it to him. K.H. stated, “She sells it to me.”

J.H. terminated the interview before Deputy Johnson could inquire

about the transaction.

¶5 Based on Deputy Searcy’s identification of Murphy, law

enforcement officers searched Murphy’s home and found drug

paraphernalia.

¶6 In an interview conducted approximately nine months later, in

October, K.H. changed his story, telling Deputy Searcy that he had

procured the methamphetamine from a dealer friend he

encountered in the bathroom at the concert, and that he had

injected it before attending school the next morning. At trial, the

court admitted recorded jail phone calls Murphy made to her

mother, who said, “[K.H.] swears sometimes that you did [give him

the methamphetamine], then other times he says no. I almost had

[K.H.] convinced to just right [sic] the letter saying he was lying

because he was scared.”

¶7 Murphy’s theory of defense was that law enforcement officials

had conducted an inadequate investigation by improperly focusing

their investigation on her. She further contended that Deputy

Searcy’s questioning in October was the first time a law

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 enforcement officer had asked K.H. where he had acquired the

drugs, claiming that K.H. consistently said he had obtained the

methamphetamine from someone he ran into at the concert. K.H.

testified at trial that he had not purchased the drug from Murphy

and had never said otherwise. Deputy Johnson testified that, based

on his training and experience, 1 he believed that K.H.’s body

language indicated he was being deceptive when he looked down

and away in response to a question.

¶8 The jury found Murphy guilty of distributing

methamphetamine and contributing to the delinquency of a minor.

She was sentenced to eight years in the custody of the Department

of Corrections.

1 The defense filed a pretrial motion objecting to Deputy Johnson’s
testimony as an expert in the field of “witness interviewing,” stating
that his testimony about K.H.’s body language was expert testimony
that “could only be gleaned through official training and not
through experience alone,” and the evidence did not establish that
he had expertise in the field. After the People responded, the trial
court ruled that Deputy Johnson’s testimony about K.H.’s body
language was “really lay witness testimony” and “the endorsement
was done in an abundance of caution.” Thus, when the defense
objected to the testimony at trial, the court overruled the objection,
declaring that “pursuant to the court’s order . . . this was proper lay
opinion testimony, so [the defense] [doesn’t] have to establish that
he’s an expert.”
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 II. Standard of Review

¶9 We review a trial court's evidentiary decisions for an abuse of

discretion. People v. Dunlap, 975 P.2d 723, 741 (Colo.1999). A trial

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misinterprets or misapplies the

law. Id.; People v. Ortiz, 2016 COA 58, ¶ 14, 381 P.3d 410, 413.

¶ 10 If we determine the trial court abused its discretion, we reverse

only “if the error affects the substantial rights of the parties.”

Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. In other

words, “we reverse if the error ‘substantially influenced the verdict

or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin

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

III. Lay Witness Testimony

¶ 11 Murphy contends that the trial court erred in permitting

Deputy Johnson to interpret the meaning of K.H.’s body language

because his testimony was inadmissible under CRE 701. We agree.

A. Applicable Law

[T]he critical factor in distinguishing between
lay and expert testimony is the basis for the
witness’s opinion. That is, the proper inquiry
is not whether a witness draws on her
personal experiences to inform her testimony;

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 all witnesses rely on their personal experience
when testifying. Rather, it is the nature of the
experiences that could form the opinion’s basis
that determines whether the testimony is lay
or expert opinion. . . . To determine whether
the testimony in question is testimony that an
ordinary person could give, “courts consider
whether ordinary citizens can be expected to
know certain information or to have had
certain experiences.” Expert testimony, by
contrast, is that which goes beyond the realm
of common experience and requires
experience, skills, or knowledge that the
ordinary person would not have.

Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875 (citations

omitted) (quoting People v. Rincon, 140 P.3d 976, 982 (Colo. App.

2005)); see CRE 701.

¶ 12 The Venalonzo court held that “in determining whether

testimony is lay testimony under [CRE] 701 or expert testimony

under CRE 702, the trial court must look to the basis for the

opinion.” Id. at ¶ 2, 388 P.3d 868, 870-71. The Venalonzo court

concluded that, while an interviewer’s testimony describing child

interview techniques and general child behaviors constituted proper

lay witness testimony, testimony explaining that children often use

hand gestures “to demonstrate where on their bodies they were

touched,” coupled with a statement that the victim had engaged in

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 this behavior, was improper. Id. at ¶ 29, 388 P.3d at 876. The

supreme court deemed the latter statements improper because the

interviewer “attached significance to the victims’ behavior that an

ordinary person would not recognize.” Id.

¶ 13 In People v. Ramos, a companion case, the supreme court

determined that a detective’s testimony — based on his training and

experience — differentiating blood cast-off from blood transfer was

expert testimony in the guise of lay testimony. 2017 CO 6, ¶ 9, 388

P.3d 888, 891. The court reasoned that the detective’s testimony

involved technical areas not within an ordinary person’s experience

or knowledge and concluded that the People improperly relied on it

without seeking to qualify the detective as an expert. Id.; see CRE

702.

¶ 14 A lay witness may express an opinion of another person’s

behavior “if the witness had sufficient opportunity to observe the

person and to draw a rational conclusion about the person’s state of

mind; an opinion that is speculative or not based on personal

knowledge is not admissible.” People v. Jones, 907 P.2d 667, 669

(Colo. App. 1995).

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¶ 15 However, when a witness testifies based on his or her “training

and experience,” courts generally conclude that the witness

provided expert testimony. See, e.g., People v. Kubuugu, 2019 CO

9, ¶ 16, 433 P.3d 1213, 1217-18; Ramos, ¶ 9, 388 P.3d at 891;

People v. Veren, 140 P.3d 131, 137 (Colo. App. 2005); cf. Venalonzo,

¶ 27, 388 P.3d at 875-76 (concluding that an interviewer’s

statements — based on her training and experience — “describing

her professional background, including the number of interviews

she has conducted and the number of times she has testified in

court, is not expert testimony because any ordinary person is

capable of describing her own credentials”). But cf. People v.

Garner, 2015 COA 175, ¶ 31, ___ P.3d ___, ___ (determining that a

detective’s statements that, based on his training and experience,

he preferred in-person lineups to photographic lineups was “proper

[under CRE 701], because the detective, as a lay witness, had

substantial experience conducting photo lineups”) (cert. granted

Oct. 17, 2016).

¶ 16 Colorado appellate courts have not specifically addressed

whether law enforcement officer testimony about conclusions drawn

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 from a witness’s body language is admissible lay witness testimony.

Therefore, we turn to case law in other jurisdictions for guidance.

¶ 17 Courts in other jurisdictions have generally found lay

testimony interpreting the meaning of a witness’s body language

impermissible. United States v. Williams, 133 F.3d 1048, 1053 (7th

Cir. 1998); State v. Reimer, 941 P.2d 912, 913-14 (Ariz. Ct. App.

1997); Edwards v. State, 248 So. 3d 166, 170 (Fla. Dist. Ct. App.

2018) (citing cases); People v. O’Donnell, 28 N.E.3d 1026, 1033 (Ill.

App. Ct. 2015); People v. Henderson, 915 N.E.2d 473, 478 (Ill. App.

Ct. 2009).

¶ 18 In O’Donnell, the Illinois Appellate Court concluded that a

police officer’s testimony interpreting the meaning of the

defendant’s body language during interrogation was inadmissible.

“[The police officer] specifically testified, ‘When I would ask

[defendant] about certain things . . . he would always look away

from me, or look down * * *. * * * [I]t’s a sign of deception when

someone won’t look at you, when they look away to answer you.’”

28 N.E.3d at 1033.

¶ 19 Likewise, in Edwards, 248 So. 3d at 170, the Florida District

Court of Appeal held that testimony that body language and

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mannerisms indicated deception was improper. In Edwards, the

court concluded that the trial court had improperly admitted lay

witness testimony when a detective testified — based on his

training and experience — that a witness’s looking down, avoiding

eye contact, and burying his face in his hands during interrogation

indicated that the witness was being deceptive. Id. at 171. The

defendant exhibited the same body language in his recorded

interrogation shown to the jury directly after the detective’s

testimony. Id. The court ruled the testimony improper because,

“[w]hile the detective did not express an ultimate opinion as to

whether appellant was being truthful during the interrogation, the

detective’s testimony was clearly calculated to imply that appellant’s

body language showed he was being deceptive.” Id. at 170-71. The

court based its opinion, in part, on an earlier opinion in which the

court deemed an officer’s lay testimony improper because he

applied his expertise in evaluating the defendant’s credibility. See

Miller v. State, 782 So. 2d 426, 431 (Fla. Dist. Ct. App. 2001).

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 B. Analysis

1. Case Law Regarding Body Language Testimony

¶ 20 As we read the decisions cited above, the courts in other

jurisdictions have concluded that testimony interpreting body

language is inadmissible lay testimony.

¶ 21 Here, Deputy Johnson relied on his training and experience to

interpret K.H.’s body language to indicate that he was being

deceptive. His testimony exceeded the bounds of CRE 701 because

it provided more than an opinion or inference rationally based on

his perception; instead, it interpreted K.H.’s body language based

on his training and experience. 2 This was improper under

Venalonzo, ¶ 22, 388 P.3d at 875.

¶ 22 The present case is unlike People v. Acosta, where a majority

of a division of our court concluded that witness testimony

describing the defendant as “very guilty-looking” after the

commission of a crime was proper under CRE 701 because the

witness was the defendant’s friend and had no training or

2We do not decide whether this would have been admissible as
expert testimony.
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 experience in criminal investigations. 3 2014 COA 82, ¶ 49, 338

P.3d 472, 481. The Acosta division reasoned that “[the witness’s]

statement was her summary characterization of how she perceived

defendant looked and acted immediately following the incident and

did not consist of a statement that she personally believed the crime

had occurred or that she thought defendant was guilty.” Id. at

¶ 46, 338 P.3d at 481. The present case is distinguishable. The lay

witness in Acosta, a friend of the defendant, possessed a baseline

familiarity with the defendant’s facial features. Deputy Johnson,

unlike the lay witness in Acosta, was not a friend who was familiar

with K.H.’s body language or expressions. Thus, he was applying

his training and experience to interpret K.H.’s body language.

¶ 23 The prosecutor asked Deputy Johnson to opine on the

meaning of K.H.’s body language. Deputy Johnson responded that,

when initially asked where he got the methamphetamine, K.H.

“didn’t seem like he wanted to answer.” Deputy Johnson followed

up by asking whether he got it from Murphy, and K.H.

3We do not address whether we agree with the majority in People v.
Acosta, 2014 COA 82, 338 P.3d 472, because the facts in the
present case are distinguishable.
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 didn’t snap his head and shake his head and
say no right away. . . . Instead, his body
language changed. He looked — had been
looking at me as I was speaking to him. He
looked down and away.

I took that, based on my training and
experience, to be that he just really didn’t want
to answer me, because — and that was an
affirmative.

¶ 24 During his closing argument, the prosecutor relied on K.H.’s

silence to state that K.H. affirmatively “answered [Deputy Johnson’s

question] with his body language.” Thus, Deputy Johnson’s

interpretation of this body language, based on his training and

experience, “assist[ed] the trier of fact to understand the evidence or

to determine a fact in issue,” which constitutes improper lay

witness opinion testimony. CRE 702; see CRE 701 (stating lay

witness testimony may “not [be] based on scientific, technical, or

other specialized knowledge within the scope of Rule 702”).

¶ 25 Accordingly, we agree with other jurisdictions addressing the

issue and conclude that Deputy Johnson’s lay testimony improperly

interpreted K.H.’s body language and exceeded the scope of

permissible lay testimony under CRE 701. See, e.g., Williams, 133

F.3d at 1053; O’Donnell, 28 N.E.3d at 1033. However, we note the

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 distinction between the circumstances underlying Deputy

Johnson’s testimony and those in situations where a witness’s

expressive conduct conveys a commonly understood proposition,

such as a nod to denote an affirmative answer or shaking of the

head to denote a negative answer.4 Thus, we emphasize the

fact-specific analysis inherent in determining whether a witness is

testifying as an expert under the guise of lay witness testimony.

2. Harmlessness of Error

¶ 26 We conclude the admission of this testimony did not

constitute harmless error. K.H.’s credibility was a significant issue

at trial. Through his testimony, the court permitted Deputy

4 Testimony regarding body language offers little relevance without

a commonly accepted definition of the matrix
of human expressions, body language, and
actions that demonstrate [the emotion
purportedly conveyed]. This definition, or
understanding, may be supplied by the law, by
common experience, or perhaps by social
science. Without such a common
understanding, the opinion by the witness that
defendant [was portraying a certain emotion]
has no probative value whatsoever.

Id. at ¶ 104, 338 P.3d at 489 (Berger, J., concurring in part and
dissenting in part).
14
 Johnson to tell the jury that through K.H.’s body language, K.H.

had told the deputy who had given him the methamphetamine —

Murphy. That is, the court essentially allowed Deputy Johnson to

tell the jury that, even though K.H. was telling a different story at

trial, his training and experience enabled him to determine which

version was correct because he was able to see and interpret K.H.’s

body language during the initial interview. Thus, if the jurors were

in a situation where they could not determine which version of

K.H.’s story to believe, they could have turned to the deputy’s

improper statements that the victim’s body language said it all:

Murphy sold him the drugs.

¶ 27 We recognize that some properly admitted evidence suggested

that Murphy used methamphetamine, including K.H.’s description

of the circumstances under which he consumed methamphetamine,

the fact that he was with Murphy, and that he knew she used

methamphetamine. However, other evidence suggested that

Murphy did not give K.H. the drugs. When later interviewed by

other law enforcement officers and investigators, K.H. repeatedly

stated that he bought it from someone else. In fact, the only

statement that suggested that Murphy supplied him the

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 methamphetamine was given to Deputy Johnson, during the

interview that is central to this case, when K.H. was hospitalized

and still under the influence of the drugs. Another investigator

testified that the brand of syringes found in Murphy’s home was

different from that found in K.H.’s backpack.

¶ 28 Further, the jury may have unduly weighed Deputy Johnson’s

interpretation of K.H.’s body language because it — coupled with

K.H.’s response that she sold him the methamphetamine — was the

only evidence that connected Murphy directly to K.H.’s possession

of the drugs. Without his testimony interpreting the body language,

it is reasonably probable that the outcome would have been

different, and thus the improper testimony substantially influenced

the verdict. See Krutsinger v. People, 219 P.3d 1054, 1063 (Colo.

2009).

¶ 29 Therefore, we conclude that the error in admitting the

prejudicial testimony affected Murphy’s substantial rights and

constituted reversible error. See Kubuugu, ¶ 16, ___ P.3d at ___

(concluding that police officer’s inadmissible testimony regarding

metabolized alcohol odors influenced the verdict; the error was not

16
 harmless even though some evidence supported prosecution’s case

and other evidence supported defendant’s case).

IV. Improper Testimony on Credibility of Witness

¶ 30 Murphy contends that Deputy Johnson improperly opined as

to the veracity of K.H.’s testimony by stating, “[K.H.] told me he

didn’t remember [who had given him the methamphetamine]. Well,

I believed that he did remember, he just didn’t want to tell me . . . .”

Since we reverse the trial court’s judgement based on improper

admission of lay witness testimony under CRE 701, we need not

address this issue because we cannot say whether or in what

context it is likely to arise on remand.

V. Conclusion

¶ 31 Accordingly, the judgment is reversed, and the case is

remanded for a new trial.

JUDGE TOW concurs.

JUDGE BERGER specially concurs.

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 JUDGE BERGER, specially concurring.

¶ 32 I agree with the majority that “Deputy Johnson’s lay testimony

. . . exceeded the scope of permissible lay testimony under CRE

701.” Supra ¶ 25. The deputy testified that his interpretation of

K.H.’s body language was based on his “training and experience.”

That training and experience went “beyond the realm of common

experience and require[d] experience, skills, or knowledge that the

ordinary person would not have” and therefore constituted

specialized knowledge that was inadmissible as lay testimony.

Venalonzo v. People, 2017 CO 9, ¶ 22.

¶ 33 The majority could have, and should have, stopped there. But

the majority then waded into the enormously complicated subject of

the admissibility of an observer’s opinion regarding the meaning of

another person’s body language.

¶ 34 This was unnecessary to the CRE 701 analysis. It was also

unnecessary because the challenged testimony by the police officer

was, in this context, an improper commentary on the credibility of a

material witness in this case.

¶ 35 The officer who interviewed K.H testified that when he initially

asked K.H. if he obtained methamphetamine from his sister, he was

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not forthcoming. The officer further testified that, based on his

training and experience, he construed K.H.’s body language as

conveying that the answer to the question was affirmative, even

though K.H. did not expressly then communicate an affirmative

answer. If this were the end of the colloquy, or the officer’s

testimony at trial, it would be unfair to characterize the officer’s

testimony as a commentary on K.H.’s credibility. However,

immediately after the officer observed K.H.’s body language, he

directly asked K.H. whether Murphy gave or sold the

methamphetamine to him. K.H. responded: “She sells it to me.”

Because K.H. admitted to the officer that Murphy sold him the drug

(immediately after “not being forthcoming”), the relevance of the

officer’s opinion regarding K.H.’s body language is questionable. As

the majority reasons in its analysis of whether the improper

admission of the body language evidence required reversal, the real

effect (and I submit the only real probative value) of the officer’s

body language opinion goes to K.H.’s credibility. This is so because

later in the case, K.H. testified that he did not get the

methamphetamine from his sister (and denied telling the officer the

contrary).

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¶ 36 Under longstanding Colorado Supreme Court precedent, it is

improper and inadmissible for any witness, lay or expert, to express

an opinion as to whether another witness has told the truth or lied

on a particular occasion. Liggett v. People, 135 P.3d 725, 731 (Colo.

2006). Application of this settled principle of law compels the

conclusion that the admission of that evidence constituted error

without regard to any analysis of body language.

¶ 37 The majority’s body language analysis is problematic for

several reasons.

¶ 38 First, the law does not support the majority’s analysis to the

extent it claims. Because of the paucity of published opinions in

Colorado on this subject (with one glaring exception), the majority

purports to rely on a number of out-of-state cases to reach the

conclusion that the admission of interpretative body language

evidence was error in this case. The problem, though, is that with

one possible exception (United States v. Williams, 133 F.3d 1048

(7th Cir. 1988)), the cases relied on by the majority are cases that

were decided by application of the familiar principle that one

witness cannot express an opinion of the credibility of another

witness.

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¶ 39 Then, after relying on these out-of-state cases (most of which

add little or nothing to the inquiry), the majority chooses to duck

any analysis of the one Colorado case that directly addresses the

admissibility of opinions regarding the body language of another ––

People v. Acosta, 2014 COA 82. Though I believe Acosta was

wrongly decided, any meaningful consideration of the admissibility

of testimony interpreting body language should squarely address

Acosta.

¶ 40 In Acosta, a witness testified that the defendant was “very

guilty-looking” when she saw the defendant immediately after the

alleged sexual assault. Id. at ¶ 1. The majority differentiates

Acosta on the ground that, unlike the deputy here, the witness in

Acosta was a friend with a “baseline familiarity with the defendant’s

facial features.” Supra ¶ 22. But while the Acosta majority stated

that the defendant and the witness worked together and that the

defendant had described the witness as a friend, it never discussed

the witness’s baseline familiarity with the defendant’s facial features

–– only that the witness saw the defendant after the alleged incident

and that she had a rational basis for her opinion.

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¶ 41 By drawing this distinction between the witness’s testimony in

Acosta and the deputy’s testimony here, is the majority stating that

body language interpretation is permissible if the witness is familiar

with the person described, but impermissible if they’ve only just

met? How familiar do they need to be? Neither Acosta nor other

Colorado cases answer these questions.

¶ 42 Second, to the extent the majority concludes that lay opinions

regarding the meaning of the body language of another sometimes

are admissible but sometimes are not, the majority gives the reader

and, more importantly, trial judges no guidance.

¶ 43 Third, if, in the alternative, the majority is saying that an

opinion on the body language of another never is admissible

because it is not reliable or helpful to the fact finder, that

conclusion is directly contradictory to the majority opinion in

Acosta. In addition, such a rule strikes me as the type of

categorical prohibition that will inevitably run up against facts and

circumstances that render the broad rule unworkable. Moreover, to

the extent that such a prohibition is premised on the inherent

unreliability of body language interpretation, I note that courts

invite, indeed require, jurors to engage in that exact process in

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 every case. COLJI-Crim. B:01 (2018) (“Consider each witness’s

knowledge, motive, state of mind, demeanor, and manner while on

the stand.”); COLJI-Civ. 3:16 (2018) (same).

¶ 44 In conclusion, while I agree with the majority’s analysis under

CRE 701, I do not agree with the majority’s analysis of the

admissibility of opinions regarding the body language of others.

While I have serious concerns about the majority’s harmlessness

analysis and, in the end, think that is a very close question, I

concur in the court’s judgment.

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