22CA0875 Peo v Avila 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0875 Adams County District Court No. 18CR3756 Honorable Patrick H. Pugh, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Deshawn Anthoney Avila,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Johnson and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Deshawn Anthoney Avila, appeals the judgment of
conviction entered on jury verdicts finding him guilty of attempted
second degree murder, attempted sexual assault, and first degree
assault. We affirm.
I. Background
¶2 The victim, A.V., testified that Avila was her ex-husband’s first
cousin, and before the assault, he was her close friend. On the
evening in question, the victim invited Avila to go to a nightclub
with some friends. Avila and the victim returned to her apartment
around 2 a.m., and she offered that Avila could sleep in her bed and
that she would sleep in her son’s bedroom.
¶3 The victim testified that she awoke to Avila attacking her on
her son’s bedroom floor. She testified that she had a head wound
that was bleeding profusely, that one of her eyes was swollen shut,
and that Avila strangled her until “everything was black.” A frying
pan was later determined to be the weapon used to hit the victim’s
head.
¶4 The victim also testified that her pants were unbuttoned and
pulled down partially, although she had no memory of a sexual
assault occurring. The victim eventually fought Avila off, and he
1 fled the scene. She called 911, and an ambulance transported her
to the emergency room.
¶5 The prosecution charged Avila with attempted first degree
murder, three counts of sexual assault, two counts of first degree
assault, and two crime of violence sentence enhancers. The
prosecution later amended the sexual assault counts to attempted
sexual assault.
¶6 At trial, Avila did not dispute that the victim was brutally
attacked but argued that he was not the perpetrator. To support
the victim’s testimony that Avila committed the assault, the
prosecution presented evidence that (1) Avila’s DNA was found on
the handle of the frying pan; (2) Avila left his phone at the victim’s
apartment when he fled; (3) there were no signs of forced entry in
the victim’s apartment; and (4) Avila had scratches and bruises on
his body consistent with defensive wounds.
¶7 A jury found Avila guilty of the lesser included offense of
attempted second degree murder, attempted sexual assault, and
first degree assault. The court sentenced Avila to twenty-five years
to life in the Department of Corrections’ custody. It imposed a
determinate sentence of twenty-five years on the attempted murder
2 count, ten- and twelve-year terms on the assault counts, and
indeterminate sentences of ten years to life on the sexual assault
counts, all to run concurrently.
II. Trial Errors
¶8 On appeal, Avila challenges two of the trial court’s evidentiary
rulings that he claims individually or cumulatively require reversal.
He first asserts that the trial court erroneously excluded evidence of
another male’s DNA on the victim’s body under the rape shield
statute. He then asserts that the court admitted photographs of the
victim’s injuries that were unnecessarily cumulative and prejudicial
under CRE 403.
A. Standard of Review
¶9 Avila asserts that his challenges are of constitutional
dimension. “Only those errors ‘that specifically and directly offend
a defendant’s constitutional rights are “constitutional” in nature.’”
People v. Flockhart, 2013 CO 42, ¶ 20 (quoting Wend v. People, 235
P.3d 1089, 1097 (Colo. 2010)).
¶ 10 Trial courts retain broad discretion in determining the
admissibility of evidence and the extent and type of cross-
examination they will allow. People v. Lopez, 2016 COA 179, ¶ 43.
3 But “[a]n erroneous evidentiary ruling may rise to the level of
constitutional error if it deprived the defendant of any meaningful
opportunity to present a complete defense.” People v. Conyac, 2014
COA 8M, ¶ 93. Possible confrontation clause violations are
reviewed de novo, People v. Houser, 2013 COA 11, ¶ 57, and
warrant reversal unless harmless beyond a reasonable doubt,
People v. Johnson, 2021 CO 35, ¶ 17.
¶ 11 The first claimed error did not deprive Avila of his only means
of testing prosecution evidence. See Conyac, ¶¶ 93-94. Indeed,
Avila was afforded the opportunity to highlight the absence of his
own DNA on the victim’s body, impeach the victim’s credibility,
cross-examine prosecution witnesses, present witnesses in his
defense, and make an opening statement and closing argument.
See People In Interest of D.F.A.E., 2020 COA 89M, ¶ 58; see also
Conyac, ¶ 109 (“Colorado courts have repeatedly concluded that the
rape shield statute does not violate a defendant’s right to
confrontation or cross-examination.”). Neither did the evidentiary
claim invoking CRE 403 specifically and directly offend a
constitutional right. See Flockhart, ¶ 20. Thus, we review these
issues like any other evidentiary claim of error.
4 ¶ 12 We review a trial court’s evidentiary rulings for an abuse of
discretion. Rojas v. People, 2022 CO 8, ¶ 16; see also People v.
Hood, 2024 COA 27, ¶ 6 (“We review a trial court’s . . .
determination of evidence’s admissibility under the rape shield
statute[] for an abuse of discretion.”) (citation omitted); Johnson,
¶ 16 (“[W]e review a trial court’s determination of whether a party
opened the door to otherwise inadmissible evidence for an abuse of
discretion.”). A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair or where it applies an
incorrect legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12.
¶ 13 We review preserved evidentiary errors under the harmless
error standard of reversal. See Hagos v. People, 2012 CO 63, ¶ 12.
B. Rape Shield Statute
¶ 14 Avila contends that the trial court violated his right to present
a complete defense by prohibiting him from cross-examining a DNA
expert about the presence of another male’s DNA on the victim’s
external genitalia and breasts under the rape shield statute. He
further contends that even if the evidence was inadmissible under
that statute, the prosecution opened the door to its admission.
5 1. Additional Background
¶ 15 Anticipating the prosecution’s DNA expert witness, defense
counsel informed the court that an unknown male DNA profile,
from which Avila was excluded, was developed from swabs of the
victim’s breasts and external genitalia. The DNA evidence was not
drawn from a specific biological fluid such as semen or saliva; the
prosecutor explained it was “likely touch DNA coming from skin
cells.” Defense counsel wanted to use the information to suggest
that someone else committed the sexual assault.
¶ 16 In its ruling, the district court concluded that the DNA was not
evidence of a specific instance of sexual conduct under the rape
shield statute because there was no proof as to how the DNA got
there, how long it had been there, or who it came from. But the
court, somewhat perplexingly, further concluded that the evidence
fell within the purpose of the rape shield statute and that no
exception applied to allow its admission.
¶ 17 Regarding opening the door, the court ruled that there was no
viable evidence of an alternate suspect, so the prosecution did not
open the door to the DNA’s admission. Importantly, the court
limited its evidentiary ruling to the unknown DNA profile; Avila was
6 allowed to, and did, introduce testimony that his own DNA was not
found on the victim’s body.
2. Applicable Law and Analysis
¶ 18 Under the rape shield statute, evidence of specific instances of
a victim’s prior or subsequent sexual conduct is presumptively
irrelevant. § 18-3-407(1), C.R.S. 2024. We interpret “sexual
conduct,” as used in the statute, broadly. People v. Williamson, 249
P.3d 801, 803 (Colo. 2011). But evidence does not fall within the
rape shield statute’s purview “simply because it might indirectly
cause the finder of fact to make an inference concerning the victim’s
prior sexual conduct.” People v. Cobb, 962 P.2d 944, 951 (Colo.
1998).
¶ 19 The presumption of irrelevance does not apply to “evidence of
specific instances of sexual activity showing the source or origin of
semen, pregnancy, disease, or any similar evidence of sexual
intercourse” offered to show that “the act or acts charged were or
7 were not committed by the defendant.” § 18-3-407(1).1 Evidence
offered under an exception to the rape shield statute must still
comply with the standard evidentiary rules. Hood, ¶ 18.
¶ 20 In Hood, ¶¶ 13, 15, a division of this court recently held that
“the mere presence of someone else’s DNA on a person’s external
genitalia, standing alone,” does not amount to evidence of a specific
instance of prior or subsequent sexual conduct within the meaning
of the rape shield statute. In that case, the DNA evidence was not
offered to prove an alternate suspect theory or that the victim
engaged in sexual conduct. Id. at ¶ 13. Instead, it was offered to
show that DNA evidence remained on the victim’s body after she
showered, undercutting the prosecution’s theory that the
defendant’s DNA must have been washed away. Id. at ¶ 14. The
division in Hood rejected a broad holding that only DNA drawn from
sexual biological fluids can implicate the rape shield statute, leaving
1 This statutory subsection used to appear at section 18-3-
407(1)(b), C.R.S. 2023. In 2024, the General Assembly passed H.B. 24-1072, “Protection of Victims of Sexual Offenses,” wherein the subsection was moved to section 18-3-407(1), C.R.S. 2024. See Ch. 123, sec. 2, § 18-3-407, 2024 Colo. Sess. Laws 408. Because H.B. 24-1072 did not substantively change the portions of the statute relevant here, we elect to cite the current version.
8 room for cases where unspecified DNA evidence could implicate the
rape shield statute on different facts. See id. at ¶ 15.
¶ 21 “[A] trial court may exclude evidence of an alternate suspect
that ‘has only the most minimal probative value, and which
requires a jury to engage in undue speculation as to the probative
value of that evidence.’” People v. Cook, 2014 COA 33, ¶ 39
(quoting People v. Salazar, 2012 CO 20, ¶ 17).
¶ 22 But even assuming the DNA evidence fell under one of the
exceptions of the rape shield statute, or that the statute was
completely inapplicable, the evidence was nonetheless inadmissible
because it was irrelevant, CRE 401, and prejudicial, CRE 403. See
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (we may affirm
on any ground supported by the record); Hood, ¶ 18 (DNA evidence
must still be admissible under standard evidentiary rules). Thus,
we affirm the trial court’s evidentiary ruling, albeit on different
grounds.
¶ 23 First, the DNA evidence had minimal probative value.
Testimony established that touch DNA is developed from skin cells
that people shed, and it can often be found in places where people
spend a lot of time, such as in their own home. Touch DNA can be
9 transferred from object to object and from person to person, making
it difficult to determine its origin. The prosecutor represented to the
court, via offer of proof, that the DNA expert would testify that
“touch DNA of the sort identified in her report could . . . be around
indefinitely” depending on numerous factors. Defense counsel
admitted that there was no way to prove how long the DNA had
been present.
¶ 24 Given the innumerable ways that the DNA could have ended
up on the victim’s body — whether from her clothes, hands, or
otherwise — the presence of male DNA on the victim’s external
genitalia and breasts had minimal probative value, especially where
evidence showed that the victim lived with her son and slept in his
bed before the attack. See People v. Young, 2014 COA 169, ¶ 73
(recognizing the low probative value of touch DNA); see also People
v. Harris, 43 P.3d 221, 226 (Colo. 2002) (rejecting admissibility of a
prior sexual encounter offered to explain that someone else caused
the victim’s vaginal abrasion).
¶ 25 This evidence was not probative in the same manner as
analyzed in Hood. That case involved a different theory of
relevance; rather than being offered to prove that an unknown,
10 alternate suspect committed the assault, the DNA was offered to
rebut the prosecution’s theory that the defendant’s DNA was not
found on that victim because she showered after the assault. Hood,
¶ 14. Another person’s DNA on the victim’s body, which survived
showering, directly rebutted that theory. Id. Here, the evidence
was offered to prove sexual conduct, and because touch DNA is not
terribly probative of a sexual act, the evidence here was far less
useful than in Hood.
¶ 26 The most probative aspect of the DNA expert’s report was that
none of Avila’s DNA was found on the victim’s external genitalia and
breasts. This evidence most directly rebutted the prosecution’s
theory that Avila sexually assaulted the victim, and Avila had the
opportunity to thoroughly cross-examine the expert on that fact.
¶ 27 Second, the prejudice that could have resulted from the touch
DNA’s admission was substantial. “The purpose of Colorado’s rape
shield statute is ‘to protect sexual assault victims from humiliating
public fishing expeditions into their past sexual conduct.’” Id. at
¶ 12 (quoting Cook, ¶ 36); see also People v. Melillo, 25 P.3d 769,
777 (Colo. 2001) (“[I]n weighing the relevance of such evidence
11 against its potentially prejudicial effect, a trial court may consider
the policy concerns underlying the rape shield statute.”).
¶ 28 In Hood, ¶ 22, the division reasoned that the DNA evidence
was not highly prejudicial because there were nonsexual
explanations for how the DNA could have been transferred to the
victim. Here, however, the evidence was offered to prove the sexual
inference. Thus, it was designed to probe the victim’s sexual
history, a purpose that our case law largely discourages precisely
because of its irrelevance, regardless of the rote applicability of the
rape shield statute. See Williamson, 249 P.3d at 802.
¶ 29 For these reasons, the trial court correctly excluded the
evidence of another male’s DNA on the victim’s external genitalia
and breasts. We perceive no violation of the victim’s substantial
rights on these facts. See Harris, 43 P.3d at 227 (rejecting Fifth and
Sixth Amendment challenges in the rape shield context when the
proffered evidence was irrelevant because those rights “require only
that the accused be permitted to introduce all relevant and
admissible evidence”); People v. Villa, 240 P.3d 343, 355 (Colo. App.
2009) (same).
12 3. Opening the Door
¶ 30 Avila argues that even if the evidence was inadmissible, the
prosecution opened the door to its admission in two ways. First,
the prosecution opened the door by eliciting the victim’s testimony
that nobody else was in her home on the night in question (to the
best of her knowledge). Second, the prosecution opened the door by
eliciting testimony that other male DNA was found on the frying pan
handle.
¶ 31 “[A]lthough the Rape Shield Statute bars evidence of a rape
victim’s . . . past sexual conduct, the defense may still introduce
such evidence if the prosecution makes the evidence relevant by
‘opening the door’ to the evidence.” People v. Murphy, 919 P.2d 191,
195 (Colo. 1996). The “opening the door” concept represents an
effort by courts to prevent one party from “gaining and maintaining
an unfair advantage” at trial through “selective presentation of facts
that, without being elaborated or placed in context, create an
incorrect or misleading impression.” Id. But application of the
opening the door concept is nevertheless subject to considerations
of relevance, CRE 401, and prejudice, CRE 403. See also Harris, 43
P.3d at 227; Melillo, 25 P.3d at 775.
13 ¶ 32 Neither piece of testimony opened the door to evidence of
another male’s DNA on the victim’s external genitalia and breasts.
The first statement, that nobody else was in the victim’s home to
the best of her knowledge, did not create an incomplete or
misleading impression requiring admission of the DNA evidence.
The defense’s theory seems to be that the victim was not allowed to
testify to the absence of others in her home without opening the
door to the fact that another man’s DNA was found on her because
the DNA was probative of an alternate suspect in the home at the
time of the assault. The foregoing analysis explains why that theory
fails.
¶ 33 Similarly, the presence of another male’s DNA profile on the
weapon did not leave an incorrect or misleading impression
requiring admission of the DNA on the victim’s body. There was no
evidence that the male DNA present on the frying pan matched the
DNA on the victim’s body. Nor was any concrete evidence presented
that supported an alternate suspect theory. To the contrary, the
evidence showed that touch DNA can come from innumerable
sources and that the victim’s son — a male depositing touch DNA —
14 lived in the home. For these reasons, the court acted within its
discretion in rejecting the defense’s opening the door theory.
C. Injury Photographs
¶ 34 Avila next contends that the trial court abused its discretion in
admitting numerous photographs of the victim’s injuries that were
needlessly cumulative. We disagree.
1. Additional Background
¶ 35 At the emergency room, the treating physician concluded that
the victim sustained a serious bodily injury. Based on the victim’s
representations about the assault, the treating physician referred
her to a forensic nurse examiner for a sexual assault examination.
A forensic nurse later testified about the victim’s injuries.
¶ 36 During a bench conference, the prosecutor expressed her
intention to introduce seventy-nine photographs of the victim’s
injuries. Defense counsel objected under CRE 403, arguing that
the photographs were cumulative and prejudicial. The court invited
defense counsel to review each exhibit and object to the ones that
were cumulative.
¶ 37 Defense counsel did not object to every exhibit the prosecution
offered. Instead, he raised groups of exhibits containing what he
15 believed were duplicates, arguing that approximately forty of the
seventy-nine total exhibits were inadmissible. Defense counsel
surveyed the exhibits injury by injury — generally stipulating to the
prosecution’s admission of one photograph per injury.
¶ 38 The court then surveyed each group that defense counsel
challenged, and it excluded some cumulative photographs. It
excluded nine of the forty objected-to exhibits, admitting a total of
seventy exhibits of the seventy-nine offered. The below chart
documents the groups defense counsel challenged, and the court’s
admission or exclusion of exhibits within those categories.
Injury Exhibit #’s Total Admitted Excluded
Forehead cut 14-18 5 3 2
Black eye, right 19-23, 25- 10 8 2
26, 32, 40-
Hairline cut 27-29 3 2 1
Neck, front 34-35 2 2 0
16 Neck, side 36-38 3 3 0
Shoulder bruises 42-46 5 4 1
Left arm 47-49 3 3 0
Wrist bruises, left 50-53 4 4 0
Hand bruises, left 56-57 2 2 0
Back abrasions 58-60 3 3 0
Bicep bruise, right 63-65 3 3 0
Forearm bruise, right 67-72 6 5 1
Wrist bruise, right 75-77 3 3 0
17 Palm, left 78-82 5 4 1
Lower back abrasion 86-87 2 1 1
Mouth petechiae 95-96 2 2 0
The prosecutor referenced some, but not all, of the admitted
photographs during the forensic nurse’s subsequent testimony.
¶ 39 CRE 403 provides that relevant evidence may be excluded if its
probative value is substantially outweighed by, as relevant here, the
danger of needless presentation of cumulative evidence. “Evidence
that is ‘decidedly different in character and impact’ is not
cumulative.” People v. Vanderpauye, 2021 COA 121, ¶ 47 (quoting
People v. Genrich, 2019 COA 132M, ¶ 117) (Berger, J., specially
concurring), aff’d, 2023 CO 42.
¶ 40 Photographs of a victim’s injuries are generally relevant
because they show “whether and how the offenses were committed.”
People v. Herrera, 2012 COA 13, ¶ 34. Photographs are not
18 inadmissible merely because they visually depict testimony already
given. People v. Maass, 981 P.2d 177, 187 (Colo. App. 1998).
Otherwise relevant photographs are not rendered inadmissible
solely because they reveal shocking details of the crime. Id.
¶ 41 “Courts are given broad discretion in performing the CRE 403
balancing test, and a trial court’s balancing decision will not be
disturbed absent an abuse of discretion.” People v. Garrison, 2012
COA 132M, ¶ 16.
¶ 42 We perceive nothing manifestly arbitrary, unreasonable, or
unfair about the trial court’s evidentiary ruling here. See People v.
Pahlavan, 83 P.3d 1138, 1140 (Colo. App. 2003) (“The fact that
evidence is cumulative does not, by itself, render the evidence
inadmissible. Instead, admission of cumulative testimony is an
abuse of discretion only if it is manifestly arbitrary, unreasonable,
or unfair under the circumstances.”).
¶ 43 The prosecution had the burden to prove, as relevant here,
that the victim was assaulted and sustained serious bodily injury.
Bearing that in mind, the trial court carefully reviewed the
challenged photographs to determine whether they depicted the
same image or whether they showed a different angle, a different
19 scale, or a measurement of the injury using a ruler. It ruled that
the admitted photographs were decidedly different in character
based on those features. See Vanderpauye, ¶ 47. Careful not to
needlessly present cumulative prejudicial evidence, the court
excluded exhibits that were substantially similar. Having done that
balancing, and reaching a reasonable result, we do not believe the
trial court abused its discretion. See Vigil v. People, 2019 CO 105,
¶ 14 (“[R]eviewing courts have . . . been admonished from
considering merely whether they would have reached the same
conclusion and, instead, must affirm as long as the trial court’s
decision fell within a range of reasonable options.”).
¶ 44 Further, even if some of the admitted exhibits bordered on the
cumulative side, that was not necessarily a basis to exclude them
because they corroborated the victim’s testimony about her assault
and the forensic nurse’s testimony about the victim’s documented
injuries. See Maass, 981 P.2d at 187.
III. Cumulative Error
¶ 45 Avila argues that together the alleged foregoing errors, even if
harmless individually, constitute cumulative error requiring
reversal. “For reversal to occur based on cumulative error, a
20 reviewing court must identify multiple errors that collectively
prejudice the substantial rights of the defendant, even if any single
error does not.” Howard-Walker v. People, 2019 CO 69, ¶ 25. But
the claimed errors here do not merit reversal, alone or cumulatively,
because we conclude that no error occurred. See People v. Daley,
2021 COA 85, ¶ 141 (“The doctrine of cumulative error requires
that numerous errors occurred, not merely that they were alleged.”).
IV. Disposition
¶ 46 The judgment is affirmed.
JUDGE JOHNSON and JUDGE SCHOCK concur.