Dilver Dilson Hernandez-Avila v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 16, 2023
• Docket: 2022 CA 001266
• Status: Unknown

Opinion

RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1266-MR

DILVER DILSON HERNANDEZ- AVILA APPELLANT

APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT COSTANZO, JUDGE ACTION NO. 19-CR-00444

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: COMBS, DIXON, AND ECKERLE, JUDGES.

DIXON, JUDGE: Dilver Dilson Hernandez-Avila appeals from his conviction for

first-degree sexual abuse in Bell Circuit Court, for which he was sentenced to ten

years’ incarceration. After careful review of the record, briefs, and law, we affirm. FACTS AND PROCEDURAL BACKGROUND

Eleven-year-old G.N.D. went to work with her mother at a local

restaurant in Middlesboro, Kentucky, on September 2, 2019. At some point,

G.N.D. went outside with her mother to break down boxes and take out the trash

but returned to the restaurant alone to get a drink. Video surveillance footage

showed G.N.D., who was wearing a short romper, enter the kitchen of the

restaurant, where only Hernandez-Avila could be seen working. G.N.D. testified

she knew him as “Wilson” and was only minimally acquainted with him through

her various visits to the restaurant. Upon entering the kitchen, Hernandez-Avila

approached G.N.D. and proceeded to hug her, open-mouth kiss the side of her face,

and grab at G.N.D.’s genital area. She attempted to back up and move away. The

video surveillance showed the interaction from two different angles. G.N.D. did

not immediately tell her mother about the incident; instead, she requested that her

mother’s fiancé take her home.

Later that evening, G.N.D. detailed what happened, and her mother

immediately took her to the Middlesboro Police Department to report the incident.

G.N.D. indicated that “Wilson” put his hand inside of her romper and touched her

vagina. Officer Nicholas Capps and Lieutenant Jordan Hurd investigated the

incident. After viewing the video surveillance footage, they arrested Hernandez-

Avila, who was subsequently indicted for first-degree sexual abuse and later

-2- convicted by a jury. He was sentenced to ten years’ incarceration. This appeal

followed.

STANDARD OF REVIEW

Hernandez-Avila argues that the trial court erred by allowing Officer

Capps to interpret the video surveillance during his testimony. We review a trial

court’s rulings on evidentiary issues for an abuse of discretion. Meece v.

Commonwealth, 348 S.W.3d 627, 645-46 (Ky. 2011) (citation omitted). The test

for abuse of discretion is whether the trial court’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

The remainder of Hernandez-Avila’s arguments are unpreserved, and

he requests palpable error review pursuant to Kentucky Rules of Criminal

Procedure (RCr) 10.26. To prevail on an unpreserved claim of error, Hernandez-

Avila must show that the error resulted in manifest injustice. Ford v.

Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). “Manifest injustice is error

[that] so seriously affect[s] the fairness, integrity, or public reputation of the

proceeding as to be shocking or jurisprudentially intolerable.” Iraola-Lovaco v.

Commonwealth, 586 S.W.3d 241, 245 (Ky. 2019) (internal quotation marks and

citation omitted).

-3- LEGAL ANALYSIS

Hernandez-Avila first argues the trial court erred by allowing Officer

Capps to interpret the surveillance video from the restaurant. On the first day of

trial, before the jury was shown the video, the Commonwealth asked Officer Capps

what he saw that led to the arrest of Hernandez-Avila. Defense counsel objected,

arguing the video itself was the best evidence. The trial court overruled the

objection, and Officer Capps responded:

I observed three different instances where [Hernandez- Avila] tried to reach down to her toward her genital area. At that time, the eleven-year-old girl then pulled away. He then – the second instance was when he open-mouth kissed her – around this area of the face. And then attempted to touch her again underneath with the little girl pushing away once again and shrugging him off.

On the second day of trial, after showing the video to the jury, the

Commonwealth recalled Officer Capps, who again testified to what he saw in the

video over objection of defense counsel.

Kentucky Rules of Evidence (KRE) 701 limits opinion testimony to

matters “rationally based on the perception of the witness[.]” Further, witnesses

must testify based upon personal knowledge under KRE 602. “It is for the jury to

determine as best it can what is revealed in the tape recording without

embellishment or interpretation by a witness.” Gordon v. Commonwealth, 916

S.W.2d 176, 180 (Ky. 1995). A witness is also not permitted to testify concerning

-4- events he/she did not perceive in real-time. Boyd v. Commonwealth, 439 S.W.3d

126, 131-32 (Ky. 2014). Finally, a lay witness “may not interpret audio or video

evidence, as such testimony invades the province of the jury, whose job is to make

determinations of fact based upon the evidence.” Morgan v. Commonwealth, 421

S.W.3d 388, 392 (Ky. 2014) (citation omitted).

It is clear the trial court abused its discretion by allowing Officer

Capps to interpret the surveillance video for the jury. However, “[a] non-

constitutional evidentiary error may be deemed harmless . . . if the reviewing court

can say with fair assurance that the judgment was not substantially swayed by the

error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). Here,

the error was harmless because the jury viewed the video footage numerous times

and was able to interpret it independent of Officer Capps’ testimony. Id. at 689.

Further, G.N.D. provided testimony regarding the events in the video as it was

played for her, including that Hernandez-Avila touched her vagina when he

grabbed her. Accordingly, there was fair assurance the judgment was not

substantially swayed by allowing Officer Capps’ interpretive testimony. Id.

Hernandez-Avila’s second argument is that palpable error occurred

when Officer Capps testified that, after viewing the video surveillance, he “had no

doubt whatsoever” that Hernandez-Avila had committed first-degree sexual abuse

of G.N.D. Certainly, “[t]he issue of guilt or innocence is one for the jury to

-5- determine, and an opinion of a witness which intrudes on this function is not

admissible[.]” Nugent v. Commonwealth, 639 S.W.2d 761, 764 (Ky. 1982).

However, we agree with the Commonwealth that Officer Capps’ testimony does

not rise to the level of palpable error. The video surveillance footage of the

incident was clear (i.e., not grainy, pixelated, or otherwise difficult to discern) and

visible from two distinct angles. That, combined with the testimony of G.N.D. and

her mother, provided overwhelming evidence against Hernandez-Avila.

Accordingly, manifest injustice did not occur.

Hernandez-Avila’s third argument is that the jury instruction for first-

degree sexual assault resulted in a verdict that was not unanimous. Specifically, he

argues that some jurors could have interpreted the instruction to mean the open-

mouth kiss constituted the sexual assault, rather than the touching of G.N.D.’s

genitals. He points to the prosecutor’s statement in closing that the kiss was sexual

contact. We disagree with Hernandez-Avila that the prosecutor’s statement rises to

the level of palpable error.

“[Jury] instructions in criminal cases should conform to the language

of the statute. It is left to the lawyers to flesh out the bare bones in closing

argument.” Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006) (internal

quotation marks and citations omitted). Here, the jury instruction for sexual abuse

in the first degree mirrored the language of Kentucky Revised Statutes (KRS)

-6- 510.110. Specifically, Instruction No. 1 stated, in relevant part, that the jury was to

find Hernandez-Avila guilty if they believed beyond a reasonable doubt that “he

subjected G.N.D. to sexual contact; AND . . . [t]hat at the time of such contact,

G.N.D. was less than twelve (12) years of age.” Further, Instruction No. 3

mirrored the language of KRS 510.010(7) in defining sexual contact as “any

touching of the sexual or other intimate parts of a person done for the purpose of

gratifying the sexual desire of either party[.]”

Although the prosecutor did misspeak by referring to the open-mouth

kiss as sexual contact, it was clear from the remainder of the Commonwealth’s

closing argument that the sexual contact contained in the jury instructions referred

to the touching of G.N.D.’s genitals. For example, the prosecutor later told the

jury that they “heard Lieutenant Hurd say they discussed the charge and they

charged him with sexual abuse in the first[ ]degree because he touched her vaginal

area.” Moreover, in its closing, defense counsel acknowledged Hernandez-Avila

kissed G.N.D., but specifically stated that kissing is not sexual contact. The

remainder of the defense’s closing focused on the argument that the video did not

show Hernandez-Avila actually touching G.N.D.’s genitals, which was the only

way he could have committed sexual abuse. The jury instructions, combined with

the closing arguments of both parties, clearly indicated the sexual abuse at issue

-7- was the touching of G.N.D.’s genitals by the defendant. Thus, there was no

palpable error.

Hernandez-Avila next argues that the testimony of Officer Capps that

the defendant’s only identification, upon arrest, was from a deceased individual in

North Carolina whose surname was Wilson, was a violation of KRE 404(b). The

rule states that evidence of other crimes, wrongs, or acts is “not admissible to

prove the character of a person in order to show action in conformity therewith.”

Id.

We again review only for palpable error. There is simply no

indication in the record before us that Officer Capps’ testimony was elicited to

show Hernandez-Avila was acting in conformity with a prior bad act (possession

of false identification) when he committed first-degree sexual abuse. Clarification

of the defendant’s identification was necessary because both G.N.D. and her

mother knew him only as “Wilson” and referred to him as such during their

testimony. Despite his arguments to the contrary, no mention was made of

Hernandez-Avila’s immigration status. We find no palpable error.

Finally, Hernandez-Avila argues cumulative error requires reversal of

his conviction. Cumulative error is “the doctrine under which multiple errors,

although harmless individually, may be deemed reversible if their cumulative

effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313

-8- S.W.3d 577, 631 (Ky. 2010). Cumulative error occurs only “where the individual

errors were themselves substantial, bordering, at least, on the prejudicial.” Id.

(citation omitted). Although Officer Capps’ interpretation of the video was

harmless error, as was his testimony that he had “no doubt whatsoever”

Hernandez-Avila committed first-degree sexual abuse, the cumulative effect of

these two errors does not render the trial fundamentally unfair. Accordingly, we

decline to reverse the trial court on the basis of cumulative error.

CONCLUSION

For the foregoing reasons, the judgment of the Bell Circuit Court is

AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Aaron Reed Baker Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

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