2007-05-10_ENFORCEMENT - C1981013

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141 P.3d 863 141 P.3d 863 (Cite as: 141 P.3d 863) cause the trial court erred in admitting and relying upon the testimony of homeowners' expert witness concerning damages to homeowners' residence. Spe- cifically, Basin claims that (1) the trial court abused its discretion in not issuing specific findings about the relevancy and reliability of the expert's opinions pursuant to CRE 702; (2) the expert witness failed to distinguish between damages occurring prior to December 1, 1997, and those occurring after that date; and (3) the expert witness's testimony that homeowners' land had no remaining value as a rural residential property was irrational and contrary to the undisputed facts. We disagree with this contention. CRE 702 governs the admissibility of expert testi, mony. ;1lasters r. People 58 P 3d 97? (Colo 200?). The rule provides: If scientific, technical, or other specialized know- ledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experi- ence, training, or education, may testify thereto in the form of an opinion or othlerwise. 1 `) The determination of whether a witness is quali- fied to testify as an expert witness is committed to the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Carder. Inc. v. Cash. 97 P.3d 174 (Colo 1pp '003). In the case of an expert witness possessing experienced-based special- ized knowledge that is not dependent on a scientific explanation, a trial court must find that the testimony would be useful to the trier of fact and that the wit- ness is qualified to render an expert opinion on the subject. CRE 702; Salcecfi v. People 999 P .2d 833 (Cok>?000); Brooks v Pc(? /c 975 P .2d 1 105 (Colo.1999). In making this determination, a court must also necessarily find that, the expert's proposed testimony is both relevant under CRE 402 and not unfairly prejudicial under CRE 403. S,71crdo V. People. su .ra: see also CR1' 40_ 403. i At trial, Basin did not object to; homeowners' witness testifying as an expert witness on matters of property valuation. Immediately following his testimony, however, *864' Basin moved to strike the testimony on grounds that it was based on;assumptions that dis- regarded established facts in thIe record and utilized Page 6 improper methodologies of property valuation. Basin subsequently reiterated those contentions and also ar- gued that under 'RE 702 and Brooks v. Per.>nlc, SLI wa the trial court was required to make specific findings concerning the relevancy and reliability of the witness's testimony. The trial court denied Basin's objections to the testimony. I(1 We agree with Basin that, in general, when an objection is filed to the testimony of an expert wit- ness on the ground that such testimony is based on improper legal and factual assumptions, People r. Shreck. 22 P .3d 68 (Colo '001) and Brooks v. Pcop/e supra. indicate that the trial court should enter specific findings setting forth the reasons sup- porting the trial court's determination of the reliability and relevancy of such testimony pursuant to CRE., 02. Nothing in those opinions or the rules of evid- ence suggests that different standards apply in cases involving scientific and nonscientific testimony. I 111121 However, we do not agree with Basin that the trial court's failure to make such specific findings in this case requires reversal. In denying Basin's ob- jection the trial court impliedly determined that the testimony satisfied the requirements of CRE 702. The record here is sufficient to permit appellate review of the trial court's ruling. See People v. Mc.4li?e 104 P.3d 2261 229 (Colo App.2004); People v. Johnson 74 P.3d 349 (Colo.tlpp '0021. Furthermore, as this case was tried to the court, not to a jury, the presump- tion is that the trial court disregarded all incompetent and immaterial evidence. See Michael i% John Ilan- cr,ck :llutrral Lili Ins C> 134 Colo 450, 334 P .2d 1090 (Colo. 1959). Under these circumstances, we conclude that the failure to make specific findings re- specting determinations of reliability and relevancy did not substantially influence the verdict or affect the fairness of the trial. We thus conclude that any er- ror here is harmless. CRE 103(x); see Pco_vle v. GcJi Lner. 769 P 2d 1081 (Colo 1989). We also conclude that the record supports the trial court's denial of Basin's request to strike testimony of homeowner's expert witness on the grounds that such testimony was based on improper factual assump- tions and improper methodology. C 20,07 Thomson/West. No Claim to Orig. U.S. Govt. Works.