Peo v. Dominguez

• Court: Colorado Court of Appeals
• Decided: September 12, 2024
• Docket: 22CA1506
• Status: Unknown

Opinion

22CA1506 Peo v Dominguez 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1506

Jefferson County District Court No. 21CR173

Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Andrew Dominguez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE HARRIS

Brown and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 12, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, James Andrew Dominguez, appeals the judgment

of conviction entered on a jury verdict finding him guilty of

aggravated cruelty to animals. We affirm.

I. Background

¶ 2 Dominguez was charged with one count each of aggravated

cruelty to animals for injuries to a kitten that resulted in the kitten

having to be euthanized, cruelty to animals for the disappearance of

a different kitten, and harassment for actions directed toward his

then girlfriend, J.G.

¶ 3 According to the evidence presented at his trial, Dominguez

and J.G. began living together in October 2020. J.G. adopted two

kittens for her children around the time she moved in with

Dominguez. A few weeks later, due to problems in the relationship,

J.G. and her children moved out of Dominguez’s apartment, but

J.G. did not take the kittens with her at that time.

¶ 4 The two remained in phone contact but had frequent

arguments. During one call, Dominguez said one of the kittens was

missing. Shortly thereafter, they had an “explosive” argument over

the phone during which Dominguez told J.G. she had made him

2

“lose control.” During the argument, J.G. could hear lots of

commotion, like “things being tossed around” and broken.

¶ 5 Later that day, when J.G. called Dominguez to check on him,

he started crying and told her that “he did something that he

couldn’t take back.” The next morning, Dominguez texted J.G. and

said that he thought something was wrong with the remaining

kitten, that she appeared to be going blind and she could not walk

properly.

¶ 6 J.G. went to the apartment that day and found the kitten with

blood around her nose and mouth and unable to walk or control

her body. J.G. took the kitten to a veterinarian. The kitten could

not be successfully treated, so she was euthanized.

¶ 7 At trial, the prosecution called both the treating veterinarian

and an expert pathologist who performed a necropsy on the kitten.

Those witnesses testified about the kitten’s injuries and their likely

cause.

¶ 8 The jury acquitted Dominguez of the cruelty to animals count

related to the one kitten’s disappearance and the harassment

3

count, but it found him guilty of the aggravated cruelty to animals

count related to the other kitten’s injuries.

II. Sufficiency of the Evidence

¶ 9 Dominguez contends that the prosecution presented

insufficient evidence to sustain the jury’s verdict finding him guilty

of aggravated cruelty to animals. We disagree.

A. Standard of Review

¶ 10 In assessing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a finding by a reasonable jury that the defendant is guilty of the

charge beyond a reasonable doubt. People v. Donald, 2020 CO 24,

¶ 18.

¶ 11 On review, we give the prosecution “the benefit of every

reasonable inference which might be fairly drawn from the

evidence,” People v. Perez, 2016 CO 12, ¶ 25 (citation omitted), and

“[i]f there is evidence upon which one may reasonably infer an

element of the crime, the evidence is sufficient to sustain that

element,” People v. Chase, 2013 COA 27, ¶ 50.

4

B. The Evidence Was Sufficient to Support Dominguez’s

Conviction

¶ 12 A person commits aggravated cruelty to animals if he

“[1] knowingly [2] tortures, needlessly mutilates, or needlessly kills

[3] an animal.” § 18-9-202(1.5)(b), C.R.S. 2024. The prosecution

must prove every element of the charged offense beyond a

reasonable doubt. Thomas v. People, 2021 CO 84, ¶ 10.

¶ 13 Dominguez contends that the evidence was insufficient to

prove that he knowingly tortured or needlessly mutilated the kitten.

We disagree.

1. The Evidence Supported a Finding of Mutilation

¶ 14 The aggravated cruelty to animals statute does not define the

word “mutilate.” In interpreting a statute, we construe undefined

words and phrases “according to their common usage.” People v.

Griego, 2018 CO 5, ¶ 25.

¶ 15 We agree with Dominguez that one common definition of

mutilate is “[t]o severely and violently damage; esp[ecially] to cut off

or cut out an essential part of; to maim or cripple.” Black’s Law

Dictionary 1225 (12th ed. 2024).

5

¶ 16 Dominguez contends that, applying this definition, the

prosecution failed to prove beyond a reasonable doubt that the

kitten sustained injuries amounting to mutilation. We are not

persuaded.

¶ 17 J.G. testified that when she arrived at Dominguez’s apartment

to collect her things, the kitten was seated “on her hind legs and

scooting with her front paws.” The friend who accompanied J.G. to

the veterinarian testified that the kitten “wasn’t able to stand.”

¶ 18 The treating veterinarian explained that his physical

examination revealed “a couple of abnormalities,” including “the

potential that the left front leg was looser in its attachment to the

body wall than the other leg.” He opined that this injury could have

been caused by someone “pulling” or “dislocat[ing]” the kitten’s leg

from her body.

¶ 19 The expert pathologist testified that the kitten sustained blunt

force trauma causing brain hemorrhages on the left side of her

head. He characterized the injuries as “very serious” and likely the

result of multiple instances of trauma.

6

¶ 20 The evidence also showed that the kitten was effectively

blinded. On the day the kitten was euthanized, Dominguez told

J.G. that the kitten’s eyes were “glossy,” and she would “run[] into

things” when she attempted to walk. The pathologist said that the

kitten had hemorrhages behind her eyes that made her eyes

“bulge.” When J.G. saw the kitten, she noticed that she could not

close her left eye, and the friend testified that the kitten’s eyes were

“crossed.”

¶ 21 From this evidence, the jury could reasonably have concluded

that the kitten was “severely damaged,” “crippled,” or “maimed.”

Accordingly, viewing the evidence as a whole and in the light most

favorable to the prosecution, we conclude that the evidence

supported a finding that the kitten had been mutilated.

2. The Evidence Supported a Finding That Dominguez Acted

Knowingly

¶ 22 Dominguez also argues that the evidence was insufficient to

prove that he knowingly caused the kitten’s injuries. Again, we

disagree.

¶ 23 A person acts “knowingly” “with respect to a result of his

conduct, when he is aware that his conduct is practically certain to

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cause the result.” § 18-1-501(6), C.R.S. 2024. “Evidence of a

defendant’s intent is usually only proved by relying on

circumstantial evidence, and ‘the finder of fact may properly infer

the intent to commit [the offense] from the defendant’s conduct and

the [surrounding] circumstances.’” People v. Lawrence, 2019 COA

84, ¶ 21 (citation omitted).

¶ 24 The evidence showed that Dominguez had exclusive control

over the kitten when the kitten was injured. Just before J.G. went

to the apartment and discovered the injured kitten, Dominguez

admitted to J.G. that he had lost control and “d[one] something that

he couldn’t take back.” He would not say what he had done.

¶ 25 The expert pathologist testified that the kitten’s injuries were

caused by “impact trauma,” meaning the kitten “was hit” on the left

side of her head. And as noted, the treating veterinarian said that

one of the kitten’s legs might have been pulled or dislocated from

her body.

¶ 26 Dominguez’s theory, argued through counsel, was that his

recording equipment could have fallen on the kitten. The

pathologist acknowledged that one instance of a large object falling

8

on the kitten could have caused the injuries, but he opined that it

was more likely, based on the number and nature of the kitten’s

injuries, that the kitten had sustained “multiple instances of

trauma.”

¶ 27 It was up to the jury to determine issues of witness credibility

and to resolve any conflicts in the evidence. See People v. Kessler,

2018 COA 60, ¶ 12. And the evidence is not insufficient merely

because Dominguez had a competing theory of causation: “where

reasonable minds could differ, the evidence is sufficient to sustain a

conviction.” Id.

¶ 28 We conclude that the evidence was sufficient to establish that

Dominguez knowingly inflicted the injuries — which amounted to

mutilation — on the kitten. The evidence was therefore sufficient to

support the conviction for aggravated cruelty to animals.

III. Prosecutorial Misconduct

¶ 29 Dominguez next contends that the prosecution committed

misconduct during closing argument that warrants reversal of his

conviction. We disagree.

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A. Standard of Review and Applicable Law

¶ 30 When reviewing claims of prosecutorial misconduct, we

conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010).

¶ 31 First, we determine “whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances.”

Id. In doing so, we consider the context of the argument as a whole

and view it in light of the evidence before the jury. People v.

Samson, 2012 COA 167, ¶ 30. The prosecution has wide latitude to

make arguments based on facts in evidence and the reasonable

inferences that can be drawn from those facts. People v. Strock, 252

P.3d 1148, 1153 (Colo. App. 2010). The prosecution is also

permitted to use rhetorical devices and engage in oratorical

embellishment. Samson, ¶ 31. And, because arguments delivered

in the heat of trial are not always perfectly scripted, we give the

prosecution the benefit of the doubt when their remarks are

ambiguous or simply inartful. Id. at ¶ 30.

¶ 32 However, closing argument cannot be used to mislead or

unduly influence the jury. Domingo-Gomez v. People, 125 P.3d

10

1043, 1048-50 (Colo. 2005). To that end, the prosecution may not

intentionally misstate the evidence or the law, attempt to inflame

the jurors’ passions or prejudices, or offer a personal opinion as to

the defendant’s guilt. Id. at 1049; see also People v. Maloy, 2020

COA 71, ¶ 61.

¶ 33 Second, if the comments were improper, we determine

“whether such actions warrant reversal according to the proper

standard of review.” Wend, 235 P.3d at 1096. We review preserved

claims of prosecutorial misconduct for abuse of discretion and

reverse only if the error substantially influenced the verdict or

impaired the fairness of the trial. Hagos v. People, 2012 CO 63,

¶ 12; People v. Licona-Ortega, 2022 COA 27, ¶ 87.

B. Discussion

¶ 34 Dominguez argues that the prosecutor committed misconduct

when she (1) misstated the pathologist’s testimony; (2) appealed to

the jury’s passions and prejudices on behalf of a sympathetic

animal victim; and (3) commented on his decision to not testify. We

perceive no reversible error.

11

1. Mischaracterization of the Evidence

¶ 35 The pathologist testified that the kitten sustained extensive

bleeding on her brain and concluded that the bleeding was “most

likely secondary to blunt force trauma.” When asked by the jury if

the kitten’s brain hemorrhage was more likely to have been caused

by something self-inflicted, such as a fall, compared to an external

factor, the pathologist explained that it was 90% or 95% more likely

that the injury was caused by an external factor rather than a fall.

¶ 36 During rebuttal closing argument, the prosecutor summarized

this portion of the pathologist’s testimony as follows:

You heard from [the pathologist] when he was

forced to put a number on it, a number on

whether this could have been an accident or

whether this was severe blunt-force trauma

caused by injuries caused by the defendant.

When he was forced to put a number on

whether this could have happened by a fall or

some sort of an accident, he said 95 percent.

¶ 37 Dominguez asserts that the prosecutor conflated a fall with

accidental trauma from an external factor and incorrectly told the

jury that the pathologist had said that the injuries were likely to

have resulted from severe blunt force trauma caused by

Dominguez.

12

¶ 38 We agree with Dominguez that the prosecutor’s summation of

the expert pathologist’s testimony was imprecise in some ways, and

her comment that the expert had identified Dominguez as inflicting

the injuries was a misstatement.

¶ 39 Still, the general gist was mostly accurate: the pathologist did

testify that the injuries were caused by blunt force trauma and that

it was about 95% likely that the kitten’s injuries did not result from

a fall, as the prosecutor said. Moreover, the prosecutor’s comments

came just after defense counsel had told the jury, correctly, that “no

one” had testified that the injuries resulted from “some nefarious

act,” that “blunt-force trauma [could] be caused . . . [by] an

accident,” and that the expert “could not rule out an accident.” We

conclude that, when evaluated in context, the brief misstatement

did not substantially influence the verdict and, therefore, any error

was harmless. See Licona-Ortega, ¶ 87.

2. Appealing to the Jury’s Sympathy

¶ 40 During closing argument, the prosecutor referred to the kitten

as “a 3-pound kitten . . . who can’t tell you what happened.”

13

¶ 41 Dominguez contends that the reference was improper because

it “appealed to the passions and prejudices of the jury on behalf of

the alleged sympathetic animal victim.”

¶ 42 But the kitten’s small size was relevant to the jury’s

determination of the severity of the injuries. And the prosecutor’s

comment did not invite the jury to decide the case on an improper

basis. To the contrary, the comment emphasized that, unlike some

victims, the kitten could not express what happened, so the jury

would have to piece together the evidence to arrive at a conclusion.

We see nothing improper about the comment.

3. Comment on Dominguez Not Testifying

¶ 43 In rebuttal closing argument, the prosecutor said, “Who knows

what happened to [the missing kitten]? Who knows what happened

to [the injured kitten]? The defendant does. . . . [T]he defendant

knows what happened.”

¶ 44 Dominguez contends that the prosecutor’s statement

amounted to a comment on his decision to not testify at trial and

therefore was improper. We are not persuaded.

14

¶ 45 A criminal defendant has the right to not testify at trial.

People v. Gallegos, 2023 COA 47, ¶ 89 (cert. granted in part on other

grounds Feb. 12, 2024). Consequently, a prosecutor may not refer

to the defendant’s exercise of his right to remain silent. People v.

Burnell, 2019 COA 142, ¶ 45. Even then, reversal is only required

where the prosecutor’s comment on the defendant’s silence creates

an inference of guilt or where the prosecutor explicitly argues that

the defendant’s silence constitutes an implied admission of guilt.

Id.

¶ 46 The challenged statement was not a comment on Dominguez’s

decision not to testify. Rather, as the prosecutor explained, she

was responding to defense counsel’s argument that “no one knows

exactly how [the kitten] was hurt” and that “curiosity [likely] killed

the cat.” At the end of her argument, the prosecutor told the jury

[Defense counsel] argued no one knows what

happened to the kittens. Curiosity killed the

cat. But the defendant knows what happened.

Curiosity did not kill [the injured kitten],

curiosity did not lose [the missing kitten]. It

was the defendant. And we ask that you find

him guilty.

15

Because the statement did not imply that Dominguez had an

obligation to testify or suggest that his failure to testify implied his

guilt, the statement was not an improper comment on his right to

silence.

IV. Disposition

¶ 47 The judgment is affirmed.

JUDGE BROWN and JUDGE LUM concur.