The People of the State of Colorado, Plaintiff-Appellee, v. Dominique Issac Rivera, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED

¶ 1 Defendant, Dominique Issac Rivera, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree assault. We affirm.

I. Background

¶ 2 This case stems from an altercation in April 2019 between Rivera; his ex-girlfriend, S.N.; and their mutual male friend, A.B.

¶ 3 Rivera and S.N. had an on-again, off again-relationship for a few years. When they weren't together, S.N. reported to law enforcement that Rivera stalked and harassed her. She got a series of protection orders against him, one of which was in effect the night of the altercation. Although the protection order required Rivera to stay away from S.N., he showed up at a bar where she was with A.B. A.B. confronted Rivera and told him to leave, but he didn't. S.N. then went over to Rivera, and they got into a physical confrontation. Other patrons broke up the fight, after which Rivera left the bar.

¶ 4 When A.B. dropped S.N. off at her apartment later that night, Rivera was there waiting for her. Rivera said he wanted to talk with her, and the two got into another physical confrontation. Seeing this, A.B. got out of his car, yelled Rivera's name, and walked toward them. As A.B. approached, Rivera ran across the street to his car. Once in the car, he circled around and drove past A.B. twice, pretending he was going to hit A.B. The third time he circled around, he locked eyes with A.B., revved the engine, and drove straight into A.B. at about twenty to thirty miles per hour. A.B. sustained road rash along the side of his body and two broken toes. S.N. also found that the door to her apartment had been kicked in.

¶ 5 Police officers tried, unsuccessfully, to pursue Rivera, who had sped out of the apartment complex immediately after hitting A.B. The next morning, they found Rivera's car on fire and apprehended him shortly thereafter. He confessed to violating the protection order, hitting A.B with his car, and burning the car. He claimed, however, that he wasn't trying to kill or injure A.B. but was acting in self-defense because A.B. had threatened him with a knife and he had thought A.B. had a gun. A knife was, in fact, discovered on the scene, but it's unclear whether A.B. had ever wielded it.

¶ 6 The People charged Rivera with attempted second degree murder, first degree assault, and vehicular assault for hitting A.B.; attempted second degree burglary and criminal mischief for breaking S.N.’s door in an attempt to get into her apartment; violation of a protection order; vehicular eluding for evading officers; and second degree arson and tampering with physical evidence for burning the car. The jury acquitted him of attempted second degree murder but convicted him on all other charges.

¶ 7 On appeal, challenging only the judgment on the first degree assault charge, Rivera contends that (1) the trial court erroneously admitted other act evidence involving S.N. without severing the charges relating to the two different victims; and (2) the prosecutor engaged in misconduct during closing argument. We consider each contention in turn.

II. CRE 404(b) Evidence and Severance

¶ 8 Rivera contends that the trial court erred by admitting evidence regarding earlier incidents with S.N. under CRE 404(b) without severing the charges relating to S.N. from those relating to A.B. We are not persuaded.

A. CRE 404(b) Evidence

¶ 9 Rivera first contends that the trial court abused its discretion by admitting evidence of three prior incidents involving S.N. According to Rivera, this evidence would not have been admissible in a separate trial of the charges relating to A.B. and, therefore, it should have been excluded at the trial on all the charges — or, at the very least, the jury should have been instructed that it was relevant only to the charges relating to S.N. We disagree.

¶ 10 Before trial, the prosecution filed a notice of its intent to admit evidence of several prior incidents involving S.N. under CRE 404(b). Defense counsel objected and, after a hearing, the trial court ruled the evidence admissible under CRE 404(b).

¶ 11 The prosecution introduced evidence of three of those prior incidents at trial. The first incident occurred in late 2016, more than two years before the incident at issue in this case. At that time, despite the couple being broken up and a protection order being in place, S.N. awoke during the night to find Rivera in her bed, touching her and telling her they needed to talk to work things out. She told him to leave several times before he finally did. After he left, she discovered that her phone was missing and the tires on her car had been slashed.

¶ 12 In the second incident, that following summer, again at a time when the couple was broken up and a protection order was in place, Rivera showed up outside S.N.’s window and yelled at her to “let him in so [they] could talk” or else he'd “fuck shit up.” He started to try to climb through the window, but he fled when she said she was calling the police.

¶ 13 In the third incident, a few days later, S.N. again awoke during the night to find Rivera in her bed, grabbing her shoulders and saying they needed to talk to work things out. She tried to call the police, but he caught her and took away her phone and car keys. The next day, after she reported the incident, officers found Rivera hanging out near her home. He initially ran off, but officers were eventually able to apprehend him.

¶ 14 CRE 404(b) prohibits the admission of evidence of uncharged misconduct for the purpose of proving that someone acted in conformity with a character trait on a particular occasion. CRE 404(b)(1). However, such evidence may be admissible for other purposes, such as to prove motive and intent. CRE 404(b)(2). In seeking to admit such evidence, the prosecution must “articulate ‘a precise evidential hypothesis’ ” by identifying the specific purpose for which the evidence will be used and explaining how the evidence establishes that purpose independent of the inference forbidden by CRE 404(b). Yusem v. People, 210 P.3d 458, 463-64 (Colo. 2009) (quoting People v. Rath, 44 P.3d 1033, 1039 (Colo. 2002) and People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990)).

¶ 15 For such evidence to be admissible, the court first must make a threshold finding, by a preponderance of the evidence, that the misconduct occurred and was committed by the defendant. People v. Vasquez, 2022 COA 100, ¶ 74. Then, in accordance with the four-part test set forth in Spoto, the court must find that (1) the evidence relates to a material fact, (2) it is logically relevant, (3) its logical relevance is independent of an impermissible propensity inference, and (4) its probative value is not substantially outweighed by the risk of unfair prejudice. 795 P.2d at 1318.

¶ 16 Additionally, the General Assembly has enacted a statute addressing evidence of prior acts of domestic violence, explaining that “domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness.” § 18-6-801.5(1), C.R.S. 2022. Therefore, evidence of prior acts of domestic violence involving a defendant “can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.” § 18-6-801.5(1)-(2). The statute goes on to reiterate the CRE 404(b) standards. § 18-6-801.5(3)-(5).

¶ 17 We review a trial court's rulings on evidentiary issues, including the admission of CRE 404(b) evidence, for an abuse of discretion. People v. Delsordo, 2014 COA 174, ¶ 6. A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair or when it misconstrues or misapplies the law. People v. Cline, 2022 COA 135, ¶ 68.

¶ 18 We discern no abuse of discretion in the trial court's admission of the prior act evidence in this case.

¶ 19 As an initial matter, we reject Rivera's argument that the prosecution failed to articulate an evidential hypothesis for admitting the evidence. The prosecution described in detail the bases for admitting the evidence as to both the charges relating to S.N. and those relating to A.B. As to the charges relating to A.B., the prosecution explained that the evidence demonstrated Rivera's motive for running over A.B. with his car:

The only reason that [A.B.] was run over that night was because he was a male and he was with [S.N.]. That is the motivation. That is what the evidence will show. That the reason [Rivera] was there in the first place was not [A.B.], but rather [S.N.]․ [A.B.] was the gentleman that came and protected her. And that is the motivation that we believe the evidence will show as to why [Rivera] ran over [A.B.] with his car.

․

We are introducing [the evidence] primarily for motive. Why was he there that night, why did he attack [S.N.], and, more importantly, why did he run over [A.B.].

․

[E]verything that he does after seeing [S.N.] come home with another man has everything to do with what's been happening for a year-and-a-half. This power and control issue, being places where she doesn't want him to be, intimidating and controlling her.

This was sufficient to satisfy the prosecution's burden. See Yusem, 210 P.3d at 463-64.

¶ 20 Moreover, the court properly found by a preponderance of the evidence that all the prior acts had actually occurred. As the court noted, in each instance, Rivera had been criminally charged and had pleaded guilty to at least one offense.

¶ 21 The court also properly found that the evidence satisfied all four Spoto prongs:

• Factor one: The court found that the prior acts “are related to material facts,” including for the charges relating to A.B., because they show Rivera's “motive and mental state ․ throughout the criminal episode.”

• Factor two: The court found that the prior acts “are logically relevant to prove [Rivera's] motive, state of mind, to negate a self-defense or heat of passion defense, and to show the domestic violence cycle”; that they “make[ ] it more probable than not that he intended to commit many of the crimes alleged here ․ as part of the domestic violence cycle”; and that they “make it more probable than not that [Rivera] was not acting under self-defense or heat of passion when committing many of the alleged offenses.”

• Factor three: The court found that “the prior acts are independent of any bad character evidence” because they “go to [Rivera's] specific motive and mental state in the domestic violence offenses alleged here, and to specifically rebut any self-defense or heat of passion defense.” The evidence also “can be separated from the impermissible inference that [Rivera] has a bad character.”

• Factor four: The court found “the probative value of the prior acts evidence is not substantially outweighed by the danger of unfair prejudice,” explaining that “[a]lthough the prior acts evidence may have a prejudicial effect, the effect is not unfair or undue.” The court noted that the evidence is relevant to Rivera's “mental state and motive” and “to rebut defenses” and that it would provide limiting instructions to the jury to mitigate any prejudice.

¶ 22 Given its proper Spoto analysis and the limiting instructions it repeatedly gave the jury, we conclude that the court appropriately exercised its discretion in admitting the other acts evidence.

¶ 23 Contrary to Rivera's contention, neither the court's reasoning nor the prosecution's hypothesis connecting the prior acts to the charges relating to A.B. were based on a “weak chain of inferences.” As the court explained, “[t]he prior acts form a narrative of connected conduct, encompassing all counts charged, including the ones that name other victims.” The prosecution similarly theorized that Rivera's obsession with S.N. informed his actions toward A.B. when he saw A.B. with her. The evidence supported the theory that Rivera drove over A.B. out of jealousy because A.B. was with S.N. Indeed, S.N. testified that Rivera had at times suspected she was having a romantic relationship with A.B. and had expressed anger and jealousy about it.

¶ 24 We are equally unpersuaded by Rivera's contention that the prior acts were dissimilar from the charges relating to A.B. As a division of this court explained in Delsordo, similarity may not be necessary if prior acts are “factually connected to the charged conduct.” Delsordo, ¶ 17. In People v. Munoz, for example, a division of this court affirmed the admission of evidence of the defendant's theft of one victim's property to demonstrate his motive for murdering the other victim. 240 P.3d 311, 319-20 (Colo. App. 2009). As the division explained, “[t]here was evidence in the record that [the] defendant previously had an intimate relationship with [the first victim] and may have been jealous of her relationship with the [other] victim.” Id. at 320. Therefore, the division held, the theft was evidence of the defendant's motive for committing murder: jealousy. Id. Here, too, Rivera's prior acts towards S.N. were evidence of a possible motive for running over A.B.: jealousy of the relationship between S.N. and A.B. The prior acts were therefore factually connected to the charges relating to A.B.

¶ 25 Because we conclude that the trial court acted within its discretion in admitting the other acts evidence as relevant to the charges relating to both S.N. and A.B., we reject Rivera's argument that the trial court should have accepted his proposed limiting instruction. That instruction would've informed the jury that the prior act evidence was relevant only to the charges relating to S.N. But, as we've explained, the evidence was relevant to the charges relating to both victims.¹

B. Severance

¶ 26 Relatedly, Rivera contends that the trial court erred by declining to sever the charges relating to S.N. from those relating to A.B. because of the prejudice resulting from admission of the prior act evidence. Again, we disagree.

¶ 27 After the trial court ruled on the admissibility of the prior act evidence, the defense moved to sever the charges relating to S.N. The court denied the motion, reasoning that the offenses were “based on the same series of acts arising from the same criminal episode,” that “a jury will be able to separate facts [and] legal principles applicable to each offense,” and that severance “would unduly prejudice the People and is not warranted by [the court's] ruling on the 404(b) [evidence].”

¶ 28 Crim. P. 14 provides, in relevant part, that “[i]f it appears that a defendant ․ is prejudiced by a joinder of offenses ․ , the court may order an election or separate trials of counts.”

¶ 29 Because a trial court's decision whether to sever charges is discretionary, a defendant challenging a court's refusal to sever must show that the joinder caused “actual prejudice” and that the jury was unable to separate the facts and legal principles applicable to each offense. Bondsteel v. People, 2019 CO 26, ¶ 59 (quoting People v. Garcia, 2012 COA 79, ¶ 28).

¶ 30 We discern no abuse of discretion in the trial court's decision on severance. Rivera has not shown either that the joinder of the charges caused actual prejudice or that the jury was unable to separate the facts and law applicable to each offense.

¶ 31 First, as we have explained, the trial court properly admitted the other acts evidence as relevant to the charges related to both victims. Thus, the evidence would've been admissible in a separate trial of the charges relating to A.B., and declining to sever the charges didn't result in any prejudice. Cf. Buell v. People, 2019 CO 27, ¶ 31 (“[P]rejudice is generally not established when the evidence of each incident would have been admissible in separate trials.”).

¶ 32 Second, there is no indication that the jury wasn't able to separate the facts and law applicable to the offenses relating to each victim. We presume the jury followed the court's instruction that “[e]ach count charges a separate and distinct offense and the evidence and the law applicable to each count should be considered separately, uninfluenced by your decision as to any other count.” See Bondsteel, ¶ 62 (presuming the jury followed an identical instruction). And although the jury convicted Rivera of many of the charges against him, it also acquitted him of the attempted murder charge relating to A.B., “suggest[ing] to us that the jury carefully considered each count and did not blur together the facts and legal theories involved in each [count] but rather kept them separate.” Id.

III. Prosecutorial Misconduct

¶ 33 Lastly, Rivera argues that the prosecutor committed misconduct during closing argument by commenting on his decision not to testify. We disagree.

¶ 34 The prosecutor started her closing argument with a monologue in which she pretended to be Rivera. The monologue referenced Rivera's repeated attempts to talk to S.N., right up to the time he saw A.B. with her:

I just wanted to talk, that's all I wanted to do. I just wanted to talk to her․ And so I waited at 2:45 in the morning for her to get home ․ I just wanted to talk to her. And can you believe she got so mad at me for creeping out at her apartment and waiting for her to get home? Can you believe what I have to put up with? She attacked me. I just wanted to talk to her. She's with [A.B.]. Is that who I see? Goddamn it, I knew it. I knew she was with that guy. And now the defendant doesn't want to talk anymore.

Defense counsel told you during opening statements that [Rivera] has a deep infatuation with [S.N.], and that's absolutely true. That deep infatuation with [S.N.] causes that guy to hide out at her apartment at 2:45 on a Friday night, to show up at a bar that he knows that she's going to be at, to wait outside for her to come out. You know that he thought that [S.N.] was with [A.B.], and you know how he knew that. And so his plan of just wanting to talk to her, as soon as [A.B.] shows up, done. That guy is fueled with jealousy, with infatuation, with obsession and with anger. (Emphasis added.)

Later in her argument, the prosecutor referenced the prior incidents in which Rivera similarly said he wanted to talk with S.N.

¶ 35 According to Rivera, the prosecutor's remark that “now the defendant doesn't want to talk anymore” referred to his decision not to testify during the trial and “overtly drew the jurors’ attention to Rivera's silence at trial as a means to imply guilty conscience.”

¶ 36 We apply a two-step analysis to questions of prosecutorial misconduct, considering (1) whether the prosecutor's conduct was improper based on the totality of the circumstances and, if so, (2) whether the conduct warrants reversal under the applicable standard. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). Where, as here, the defense didn't object to the conduct at trial, we review for plain error. People v. Buckner, 2022 COA 14, ¶ 43. An error is plain if it is obvious and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the conviction. People v. Walker, 2022 COA 15, ¶ 28.

¶ 37 The prosecutor's remark was not improper. It is true that “the prosecution may not refer to a defendant's exercise of his Fifth Amendment right to remain silent in the face of accusation” to create an inference of guilt. People v. Burnell, 2019 COA 142, ¶ 45 (quoting People v. Key, 185 Colo. 72, 75, 522 P.2d 719, 720 (1974)). But, contrary to Rivera's contention, the prosecutor was not commenting on his exercise of his Fifth Amendment rights. When read in context, the prosecutor's remark that “now the defendant doesn't want to talk anymore” clearly pertained to Rivera's state of mind on the night of the incident. The prosecutor harkened back to Rivera's repeated stalking of S.N. and his statements each time that he wanted to talk with her, including the night of the incident. And the point the prosecutor was making in her argument — made clear shortly after the challenged remark — was that Rivera's plans to talk with S.N. that night changed as soon as he saw A.B. with her: “his plan of just wanting to talk to her, as soon as [A.B.] shows up, done.”

¶ 38 But even if the jury might have interpreted the remark as referring to Rivera's decision not to testify, it still wouldn't warrant reversal. Jury instructions mitigated any harm the remark might have caused. Starting as early as voir dire, the court repeatedly told the jurors that Rivera “does not have to testify” and that if he chose not to testify, they “cannot hold it against him in any way that he did not testify.”

¶ 39 Moreover, the evidence against Rivera on the first degree assault charge was overwhelming. In addition to Rivera's confession, surveillance cameras recorded and two witnesses saw the incident, including Rivera turning his car toward A.B., driving forward without slowing or swerving away, and hitting A.B. And Rivera admitted that he fled the scene immediately after hitting A.B. and set his car on fire the following day. Given the overwhelming evidence of Rivera's guilt, the prosecutor's brief, solitary remark doesn't warrant reversal, regardless of whether it might have been perceived to pertain to Rivera's silence at trial.

IV. Conclusion

¶ 40 The judgment is affirmed.

FOOTNOTES

1.   We decline to consider Rivera's other arguments on this issue. To the extent that he argues the trial court erred by admitting the other act evidence as res gestae, the court expressly stated that it was not admitting the evidence as res gestae but, instead, was doing so under CRE 404(b). And to the extent that he argues the trial court erred by admitting “gang evidence” not included in the CRE 404(b) notice, he doesn't develop the argument. We therefore don't consider it. See People v. Barajas, 2021 COA 98, ¶ 33 n.3 (declining to consider an undeveloped argument).

Opinion by JUDGE GOMEZ

Dunn and Brown, JJ., concur JUDGE DUNN and JUDGE BROWN concur.