22CA1592 Peo v Maniz 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1592 Morgan County District Court No. 21CR103 Honorable Carl S. McGuire, III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Noe Maniz,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE TAUBMAN* J. Jones and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Lane Towery, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Noe Maniz, appeals the judgment of conviction
entered on jury verdicts finding him guilty of first degree assault
(causing serious bodily injury with a deadly weapon) and second
degree assault (causing serious bodily injury). We affirm.
I. Background
¶2 Maniz and R.B-G. spent a few days at a hotel trying to rekindle
their relationship. One night, R.B-G. left the hotel and went to the
hospital. She had a black eye, a cut to her face that required
stitches, a facial fracture, and blood on her clothes.
¶3 Maniz was charged with nineteen counts, including first
degree assault, second degree assault, third degree assault,
violating bail bond conditions, violating a protection order, and
domestic violence as a habitual offender. A number of the charges
were dismissed, and Maniz went to trial on first and second degree
assault.
¶4 At trial, the events leading to R.B-G.’s injuries were highly
disputed. A hotel employee testified that the day before the
incident, there had been yelling in the couple’s hotel room and a
complaint made to the front desk. On the night of the incident, the
employee heard crying coming from the hotel room and called the
1 nonemergency police number. Shortly after that, R.B-G. called the
front desk to say she was leaving the hotel room to go to the
hospital, Maniz had hit her, and she wanted the room locked so
that Maniz could not re-enter.
¶5 The jury also heard from a responding police officer and
viewed body camera footage of his interview with R.B-G. at the
hospital. The officer said R.B-G., who did not appear to be
intoxicated at the hospital, told him that Maniz had punched her
when she asked him to leave the hotel room because she believed
he was intoxicated.
¶6 However, according to R.B-G.’s testimony, she did not
remember what had happened in the hotel room or at the hospital.
She also said she had been very intoxicated that night and that her
injuries were probably the result of an accident that occurred
during rough, consensual sex over the bathroom sink. Though she
could not recall the specific events, she said she remembered
threatening to leave the hotel room at one point, but then offering to
stay if Maniz had rough sex with her.
¶7 The jury convicted Maniz of first degree and second degree
assault, including an act of domestic violence. The trial court
2 sentenced him to twenty-one years in the custody of the
Department of Corrections.
II. Discussion
¶8 Maniz contends that (1) the trial court erred by ruling that the
defense opened the door to evidence of Maniz’s prior domestic
violence case involving R.B-G., and (2) the prosecutor committed
misconduct by making a closing argument that included the
equivalent of expert testimony and that misstated and shifted the
burden of proof. We disagree with both contentions.
A. Opening the Door
1. Standards of Review and Reversal
¶9 We review a trial court’s evidentiary rulings for an abuse of
discretion. Rojas v. People, 2022 CO 8, ¶ 16, 504 P.3d 296, 302;
see also People v. Johnson, 2021 CO 35, ¶ 16, 486 P.3d 1154, 1158
(“[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 when it misapplies
the law. Johnson, ¶ 16, 486 P.3d at 1158.
3 ¶ 10 Maniz contends that the admission of evidence of his prior
case involving R.B-G. violated his due process rights and therefore
warrants reversal under the constitutional harmless error standard.
See Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119. We
disagree with this assertion. The constitutional harmless error
standard applies to errors “that specifically and directly offend a
defendant’s constitutional rights.” People v. Flockhart, 2013 CO 42,
¶ 20, 304 P.3d 227, 233 (quoting Wend v. People, 235 P.3d 1089,
1097 (Colo. 2010)). We apply the nonconstitutional harmless error
standard to determine if an erroneous evidentiary ruling warrants
reversal. See People v. Kern, 2020 COA 96, ¶ 13, 474 P.3d 197,
201; Yusem v. People, 210 P.3d 458, 469 n.16 (Colo. 2009)
(“Erroneous admission of CRE 404(b) evidence is not error of
constitutional dimension.”).
2. Applicable Law
¶ 11 Otherwise inadmissible evidence can become admissible if a
party opens the door “by presenting incomplete evidence on a
subject.” People v. Heredia-Cobos, 2017 COA 130, ¶ 20, 415 P.3d
860, 865. When a defendant “opens the door to otherwise
inadmissible evidence, [the prosecution] may then inquire into the
4 previously barred matter.” Golob v. People, 180 P.3d 1006, 1012
(Colo. 2008). The “opening the door” doctrine prevents one party
from gaining an unfair advantage through “the selective
presentation of facts that, without being elaborated or placed in
context, create an incorrect or misleading impression.” Id. An
opposing party may introduce otherwise inadmissible evidence “only
to the extent necessary to ‘rebut any adverse inferences which
might have resulted,’ or to correct ‘an incorrect or misleading
impression.’” People v. Cohen, 2019 COA 38, ¶ 26, 440 P.3d 1256,
1263 (citations omitted).
3. Additional Facts
¶ 12 Before trial, the prosecution moved to admit CRE 404(b)
evidence of Maniz’s prior domestic violence case involving R.B-G., in
which R.B-G. recanted her allegations at trial, leading to Maniz’s
acquittal. The trial court ruled that the evidence was inadmissible
because it did not find by a preponderance of the evidence that the
underlying allegations in the case were true. However, the court
found that — subject to a limiting instruction — “if [R.B-G.] testifies
in contradiction to prior statements regarding the facts in this case,
she is subject to impeachment with her prior statements regarding
5 the alleged events in this case” and “is also subject to impeachment
through her prior inconsistent statements made in [the prior case
with Maniz].”
¶ 13 At trial, after the prosecution rested, the defense called R.B-G.
as its only witness. Defense counsel asked R.B-G. whether she had
ever been helped by the district attorney’s office. She testified that
the district attorney’s office never “tried to help” her, did not follow
up with her, did not call her to ask how she was doing, did not offer
her any resources, and did not “give [her] the opportunity to talk
about what had happened that night.” She further explained that
she had only spoken to the victim’s advocate “but not the
prosecution, not the D.A., not law enforcement, until [she] took that
upon [her]self.”
¶ 14 The prosecutor argued that this testimony “opened the door”
to evidence that the district attorney’s office had had multiple
communications with R.B-G. “in a case prior, as well as this case”
and that R.B-G. had repeatedly indicated that she did not want to
cooperate or testify. Over defense counsel’s objection, the trial
court ruled that the prosecution could introduce such evidence.
Before the prosecutor continued with cross-examination, defense
6 counsel reiterated his objection that the door had not been opened
to that evidence and that it would be improper impeachment
evidence outside the scope of direct examination.
¶ 15 R.B-G. testified on cross-examination that this was not the
first time she “had a case like this” with Maniz, she had had contact
“multiple” times with the district attorney’s office “regarding prior
cases,” she had not wanted to testify in those cases, and she had
changed her story in those cases. R.B-G. also conceded that she
had contact with the victim’s advocate in this case:
[PROSECUTOR:] And you recall that the Victim’s Advocate in this particular matter reached out to you right after you got out of the hospital to extend help to you, didn’t she?
[R.B-G.:] Yes, the Victim’s Advocate.
[PROSECUTOR:] And she represents our office, doesn’t she?
[R.B-G.:] I would — yes.
R.B-G. did not elaborate on the details of the “prior cases” in her
testimony.
¶ 16 The prosecution then called a victim/witness coordinator as a
rebuttal witness. She testified that in “bad or felony cases” she
reaches out to alleged victims to establish relationships, and that
7 she had spoken with R.B-G. in previous cases. She also said that
R.B-G. “usually did not want to cooperate,” did not want Maniz “to
be held accountable on his charges,” and did not want to testify.
¶ 17 The jury was not given a contemporaneous limiting instruction
regarding this testimony. However, the trial court ultimately
instructed the jury as follows: “You heard testimony related to other
proceedings other than those charged in this case. The Defendant
is to be tried for the crimes charged in this case, and no other. You
are not to speculate about the charges, status, or outcomes of those
other cases.”
4. Analysis
¶ 18 Maniz argues that R.B-G.’s testimony did not open the door to
his prior case involving her because she only testified regarding the
district attorney’s communications with her in this case, and the
testimony did not create an “incorrect or misleading impression”
that needed to be corrected. The People respond that (1) R.B-G.’s
testimony put her credibility at issue and subjected her to
impeachment with prior acts showing a character for
untruthfulness, and (2) she opened the door to impeachment with
evidence of Maniz’s prior case to explain her “demonstrably untrue
8 statements” about the prosecution’s communications with her. We
agree with the People’s first argument and thus need not reach the
second.
¶ 19 “[E]vidence of specific acts used solely for impeachment is
governed by [CRE] 608(b).” People v. Segovia, 196 P.3d 1126, 1130
(Colo. 2008). Under CRE 608(b)(1), the trial court, in its discretion,
may permit cross-examination of a witness related to a specific
instance of the witness’s conduct if probative of the witness’s
“character for truthfulness or untruthfulness.”
¶ 20 When R.B-G. took the stand, she put her credibility at issue.
See Segovia, 196 P.3d at 1130. Here, the questioning about
R.B-G.’s actual communications with the district attorney’s office
and about her changing her testimony in a prior case bore squarely
on her “character for truthfulness or untruthfulness.” CRE
608(b)(1). Accordingly, this evidence was admissible as
impeachment evidence under CRE 608(b). See People v. Phillips,
2012 COA 176, ¶ 63, 315 P.3d 136, 153 (“We may uphold the trial
court’s evidentiary decision on any ground supported by the record,
even if that ground was not articulated or considered by the trial
court.”).
9 ¶ 21 Moreover, Maniz was put on notice of the potential
consequences of calling R.B-G. to testify by the trial court’s order
denying the prosecution’s CRE 404(b) motion, but which
contemplated “impeachment through [R.B-G.’s] prior inconsistent
statements made in [the prior case with Maniz].”
¶ 22 Accordingly, the trial court did not abuse its discretion by
admitting R.B-G.’s testimony, as elicited by the defense.
B. Prosecutorial Misconduct
¶ 23 Maniz contends that the prosecutor committed misconduct
during rebuttal closing by (1) making an argument equivalent to
expert testimony based on facts not in evidence and (2) misstating
and shifting the burden of proof. Because Maniz did not
contemporaneously object to these statements at trial, we apply a
plain error standard of review to both claims, and we discern no
plain error. Hagos, ¶ 14, 288 P.3d at 120.
1. Standard of Review
¶ 24 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. People v. Sauser, 2020 COA 174, ¶ 78,
490 P.3d 1018, 1034. First, we examine whether the prosecutor’s
conduct was improper based on the totality of the circumstances.
10 Id. Second, we determine whether that conduct warrants reversal
according to the proper standard of review. Id.
¶ 25 When determining whether a prosecutor’s statements were
improper and whether reversal is warranted, we consider the
language used, the context of the statements, the strength of the
evidence, whether the prosecutor improperly appealed to the jurors’
sentiments, whether the misconduct was repeated, and any other
relevant factors. People v. Walters, 148 P.3d 331, 335 (Colo. App.
2006).
¶ 26 Under the plain error standard, we will not reverse unless any
misconduct was obvious and substantial. Hagos, ¶ 14, 288 P.3d at
120. An error is obvious if it contravenes (1) a statute; (2) a well-
settled legal principle; or (3) Colorado case law. People v. Pollard,
2013 COA 31M, ¶ 40, 307 P.3d 1124, 1133. An error is substantial
if it so undermined the fundamental fairness of the trial as to cast
serious doubt on the reliability of the judgment of conviction.
People v. Smith, 2018 CO 33, ¶ 24, 416 P.3d 886, 891.
¶ 27 “Prosecutorial misconduct in closing argument rarely
constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37,
369 P.3d 737, 745. To warrant reversal under the plain error
11 standard, such misconduct must be “flagrantly, glaringly, or
tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo.
App. 1997)).
2. Expert Testimony
¶ 28 During rebuttal closing argument, the prosecutor showed a
PowerPoint presentation, which included a photo showing blood on
the bathroom sink and one showing blood on R.B-G.’s sweatshirt.
In referencing the photos, the prosecutor said,
This is the hoodie that [R.B-G.] was wearing when she went into the hospital. And you will notice a bit of a blood pattern here on the inside of that hoodie. . . . Now, ultimately, you will notice, as well, a pattern that is on the sink itself.
....
If she were naked at the time, why [are] there clothing patterns on the sink that she was leaning on when she was injured, that she, herself, talks about leaning on. She was clearly clothed. Look — look at the fiber marks.
Now, further, look at how these things match up, these fiber marks that were clearly on her shirt, because if you look at the photos here, blood had run down her face, it had pooled between her breasts and underneath her breasts, and, ultimately, it had led to a lo[t] of
12 blood collecting right here, almost exactly where she might be leaning onto a sink.
Now, this blood pattern would have also transferred onto a hoodie that she puts on and then goes to the hospital. So we know that she was wearing a shirt, that she leaned on the sink, that she put a shirt on — or possibly was wearing it at the time, and then went to the hospital to show. The physical evidence lines up with her being clothed when she was assaulted, not naked.
Defense counsel did not object.
¶ 29 Maniz contends that this amounted to misconduct because
the photo of the sink had not been admitted into evidence, and, by
talking about blood patterns, the prosecutor improperly presented
expert opinion.
¶ 30 “During closing argument, a prosecutor has wide latitude and
may refer to the strength and significance of the evidence,
conflicting evidence, and reasonable inferences that may be drawn
from the evidence.” Walters, 148 P.3d at 334. To protect a
defendant’s right to a fair trial, a prosecutor may not refer to facts
not in evidence during closing argument. Id. Prosecutors may not
imply that they have specialized knowledge and expertise in
particular matters, or encourage jurors to rely on such knowledge
13 and expertise, rather than to limit their deliberation to the facts in
evidence and any resulting reasonable inferences. See People v.
Davis, 280 P.3d 51, 54 (Colo. App. 2011) (stating that rule and
concluding that the trial court erred by permitting an argument by
the prosecutor that “effectively amounted to expert testimony”).
¶ 31 A photo of the blood on the bathroom sink was admitted at
trial as Exhibit 9. From our review of the record, the photo
included in the prosecution’s PowerPoint appears to be of the same
subject as Exhibit 9 — the blood smear on the bathroom sink. The
PowerPoint slide merely focuses on the blood smear. Although the
PowerPoint slide shows more detail than Exhibit 9, the PowerPoint
slide was not “new” evidence, and we cannot conclude that any
difference between the photo and the slide casts serious doubt on
the reliability of the judgment of conviction.
¶ 32 As to the prosecutor’s discussion of blood patterns, “counsel
may properly point to circumstances that may raise questions or
cast doubt on a witness’s testimony and draw reasonable inferences
from the evidence as to the credibility of witnesses.” People v.
Wallace, 97 P.3d 262, 270 (Colo. App. 2004). Here, the prosecutor
pointed out that one could infer from the physical evidence that
14 R.B-G. was clothed when she was bleeding, which would contradict
her version of events that she sustained injuries while having sex,
perhaps while fully naked. Although the prosecutor used the word
“pattern,” we conclude that this did not rise to the level of expert
¶ 33 People v. Ramos, 2017 CO 6, ¶¶ 9-10, 388 P.3d 888, 891, on
which Maniz relies, is distinguishable. There, the supreme court
concluded that “an ordinary citizen, without nineteen years of
experience investigating thousands of cases involving blood, would
not have been able to provide the same conclusions.” Id. The
supreme court also noted that the jurors asked the detective six
questions based on his “training and experience.” Id. Further, the
court concluded that using technical terms like “spatter” and “cast-
off” demonstrated “that forensics and the analysis of blood transfer
— specifically the difference between cast-off and transfer — are
technical areas not within the realm of an ordinary person’s
experience or knowledge.” Id.
¶ 34 Davis, 280 P.3d at 51, is also distinguishable. In that case,
despite no expert or lay testimony having been admitted “regarding
trauma victims’ experiences or any ‘stages’ they endure . . . the
15 prosecutor made argument and gave a slide presentation on these
issues, while attempting to portray them as matters the jury would
know from common sense or common experience.” Id. at 53. The
division concluded that the prosecution was describing a variation
of “rape trauma syndrome,” which was improper because it
“implicated the results of social science research, and there is no
reason to believe average jurors would be knowledgeable about the
reactions and behaviors of rape victims.” Id. at 53-54 (citation
omitted). The division reasoned that “the prosecutor implied that
he had specialized knowledge and expertise in such matters,
perhaps derived from his position as a deputy district attorney who
might be experienced in dealing with such victims,” which
“improperly encouraged jurors to rely on such supposed knowledge
and expertise, rather than to limit their deliberation to the facts in
evidence and the reasonable inferences therefrom.” Id. at 54.
¶ 35 Here, in contrast to both of these cases, the prosecutor only
asked the jurors to compare the blood patterns on R.B-G.’s hoodie
with those on the sink. In so doing, the prosecutor was drawing
reasonable inferences from the evidence as to R.B-G.’s credibility.
16 ¶ 36 However, even if we assume, without deciding, that some of
these arguments were improper, they were not flagrantly, glaringly,
or tremendously improper. People v. Allgier, 2018 COA 122, ¶ 51,
428 P.3d 713, 723. Nor were they obvious or substantial. Hagos,
¶ 14, 288 P.3d at 120. The arguments were brief and isolated and
constituted only a small part of the prosecutor’s overall closing
argument. See Sauser, ¶ 93, 490 P.3d at 1036. Further, the trial
court instructed the jury before trial that closing arguments are not
evidence. Moreover, defense counsel did not lodge a
contemporaneous objection to this argument, and “[w]e may
consider a lack of contemporaneous objection by the defendant as
demonstrating ‘the defense counsel’s belief that the live argument,
despite its appearance in a cold record, was not overly damaging.’”
Walters, 148 P.3d at 334 (quoting Domingo-Gomez, 125 P.3d at
1054). Accordingly, we conclude that the prosecutor’s arguments,
even if improper, did not rise to the level of plain error.
3. Misstating the Law and Shifting the Burden of Proof
¶ 37 In rebuttal closing argument, the prosecutor read aloud the
reasonable doubt jury instruction and then argued as follows:
17 What that’s trying to say, ladies and gentlemen, is that reasonable doubt cannot be hanged [sic] on mere possibilities. It can’t be hanged [sic] on mere what-ifs happened. And that is the entirety of the defense’s case. What if they were having rough consensual intercourse, and what if it got so rough that he injured her?
But you will recognize what she doesn’t remember. She conveniently remembers all the things surrounding that, but even she can’t testify to exactly what happened. They have nothing but speculation about what happened that night. And that is not reasonable doubt. It’s just not.
¶ 38 Maniz argues that by asserting that “reasonable doubt cannot
be hanged [sic] on mere possibilities,” the prosecutor misstated the
law regarding reasonable doubt. Even if we assume that such a
statement was improper, we nevertheless conclude that it does not
rise to the level of plain error. The statement occurred only once.
Further, the trial court properly instructed the jury on the
reasonable doubt standard. Also, the prosecutor read the proper
standard to the jury just before making this statement. See People
v. Caldwell, 43 P.3d 663, 672 (Colo. App. 2001) (concluding that no
plain error occurred in the prosecutor’s misstatement of the law in
18 closing argument because it only occurred once and the jury was
otherwise properly instructed).
¶ 39 Maniz also argues that the prosecutor shifted the burden of
proof by stating that the defense “ha[d] nothing but speculation
about what happened that night.” We are not persuaded.
¶ 40 The prosecution bears the burden of establishing beyond a
reasonable doubt every element of the offense with which the
defendant is charged. People v. Santana, 255 P.3d 1126, 1130
(Colo. 2011). This burden never shifts, and the prosecutor should
not suggest otherwise through argument or comment. Id. Even
when a prosecutor’s comments might imply that a defendant has
the burden of proof, the comments do not constitute error if,
considered in context, they do not actually shift the burden. Id. at
1131. An appellate court must evaluate the comments in light of
the entire record to determine whether the prosecution actually
shifted the burden of proof. Id. In assessing whether a prosecutor
shifted the burden of proof, we consider the degree to which (1) the
prosecutor specifically argued or intended to establish that the
defendant carried the burden of proof; (2) the prosecutor’s actions
were a fair response to defense counsel’s questioning and
19 comments; and (3) the court and counsel informed the jury about
the defendant’s presumption of innocence and the prosecution’s
burden of proof. Id. at 1131-32.
¶ 41 First, we do not perceive the prosecutor’s comment as
reflecting a specific intent to shift the burden of proof to Maniz. See
id. at 1133 (finding no burden shifting where, in part, “the
prosecutor never explicitly argued that the defendant [had] the
burden of proof”).
¶ 42 Second, the prosecutor’s comment was a fair response to
defense counsel’s arguments. In the defense’s closing, counsel
emphasized R.B-G.’s version of the events that her injuries were
likely the result of rough, consensual sex over the bathroom sink.
The prosecutor’s comment that the defense had “nothing but
speculation” merely suggested that there was a lack of evidence
supporting the defense’s theory. See People v. Walker, 2022 COA
15, ¶ 41, 509 P.3d 1061, 1072 (“Commenting on the lack of
evidence supporting a defense theory does not shift the burden of
proof.”).
¶ 43 Finally, the written jury instructions properly informed the
jury that “[t]he burden of proof is upon the Prosecution to prove to
20 the satisfaction of the jury beyond a reasonable doubt the existence
of all of the elements necessary to constitute the crime charged.”
Cf. COLJI-Crim. E:03 (2023). The elemental instructions and those
pertaining to the inferences the jury could draw from the evidence
also noted the prosecution’s burden. Both the prosecutor’s and
defense counsel’s closing arguments further reinforced the proper
burden of proof. Further, the court instructed the jury at the
beginning of trial regarding the proper burden of proof. In the
absence of evidence to the contrary, we presume that the jury
followed the trial court’s instructions. Santana, 255 P.3d at
1132-33.
¶ 44 Therefore, we conclude that Maniz’s prosecutorial misconduct
claims fail.
III. Disposition
¶ 45 The judgment of conviction is affirmed.
JUDGE J. JONES and JUDGE SULLIVAN concur.