Peo v. Maniz

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

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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

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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.

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¶ 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

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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

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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

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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

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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

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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.”).

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¶ 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.

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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

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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

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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

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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

testimony.

¶ 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:

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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.

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