Peo v. Avila

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

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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

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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.

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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.

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¶ 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.

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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

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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

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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.

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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

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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,

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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

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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).

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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.

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¶ 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 —

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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-

41

Hairline cut 27-29 3 2 1

Neck, front 34-35 2 2 0

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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

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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.

2. Applicable Law and Analysis

¶ 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

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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

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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

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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.

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