Peo v. Villalba

23CA1090 Peo v Villalba 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1090
El Paso County District Court No. 22CR2994
Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kira Lee Villalba,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE HARRIS
Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 19, 2026

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 After her fifteen-month-old child died from fentanyl

intoxication, defendant, Kira Lee Villalba, was convicted of child

abuse resulting in death and unlawful possession of controlled

substances.

¶2 On appeal, Villalba contends that the trial court committed

reversible error by denying her motion to sever her trial from that of

her codefendant, Joenny Astacio, the child’s father, and by allowing

a police officer to answer a jury question to which her counsel

acquiesced. We reject her contentions and therefore affirm.

I. Background

¶3 On the morning of the child’s death, Villalba and Astacio

called 911 to report that the child had stopped breathing.

Paramedics attempted unsuccessfully to resuscitate the child, then

they transported him to a nearby hospital where he was

pronounced dead.

¶4 Toxicology tests later established that the child died of

accidental fentanyl ingestion. The means of ingestion was

unknown, but when police searched the house, they found drug

paraphernalia, including foils, pipes, and other smoking devices,

scattered around the home, as well as multiple types of drugs.

1
¶5 At the hospital, Villalba told police that she went to sleep with

the child at around 11:00 p.m.; that at 9:00 a.m. the next morning,

while the child was sleeping, she “took a hit off of her vape,” which

she said contained nicotine, and fell back asleep; and that, two

hours later, Astacio woke her up to tell her something was wrong

with the child, and they called 911.

¶6 That evening, the parents submitted to drug testing; when the

results came back positive for high levels of fentanyl, Villalba and

Astacio were charged with reckless child abuse resulting in death

and misdemeanor drug possession.

¶7 After Astacio’s arrest, a detective questioned him about the

events surrounding the child’s death. When the prosecution later

moved to join the parents’ cases for trial, Villalba objected, arguing

that separate trials were required because the admission of

Astacio’s statements at a joint trial would violate her rights under

the Confrontation Clause. The court disagreed and granted the

prosecution’s joinder motion.

¶8 At trial, the prosecution introduced Astacio’s recorded

interview, with all references to Villalba redacted, in which he made

the following statements:

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• Drug addiction is “pure hell,” “[e]specially, like, seeing

somebody you care about go through it.”

• He smoked fentanyl with a friend all night, “up until the point”

he found the child nonresponsive the next morning. He

ingested the drug by heating the pills on foil and using a straw

or other device to inhale the smoke.

• He “c[ould] at least do this much”: he could “say, okay, you

know, we’re not gonna smoke like this,” meaning not smoke in

front of the child, “because you can’t.”

• He checked on the child throughout the night. He saw foils in

the bedroom, but they were “bagged up and out of the way.”

• Before he left the house to follow the paramedics to the

hospital, he asked the friend to clean up “foils” and “trash.”

• When asked why it took him so long to arrive at the hospital

even though “you guys lived basically across the street,” he

admitted that “there was . . . smoking” on the way to the

hospital.

Additionally, over Villalba’s objection, the court allowed Astacio’s

counsel to ask a detective whether Astacio “had kinda made a rule

that neither him nor [Villalba] was supposed to smoke fentanyl in

3
the same room as [the child],” to which the detective responded,

“Yes, they had had that discussion and agreement.” The court

twice instructed the jury that Astacio’s statements to the detective

could only be used against Astacio and not Villalba.

¶9 The prosecution did not point to either parent as the source of

the fentanyl that killed the child. Instead, its theory was that both

parents were guilty of reckless child abuse because they had

disregarded the risk of “surrounding [the child] [with] drugs and

drug paraphernalia” and thereby placed him in a dangerous

environment that led to his death. See §§ 18-6-401(1)(a), C.R.S.

2025 (“A person commits child abuse if such person . . . permits a

child to be unreasonably placed in a situation that poses a threat of

injury to the child’s life . . . .”); 18-6-401(7)(a)(I) (a person is guilty of

a class 2 felony if the person acts recklessly and the child abuse

results in death). In defense, the parents generally argued that

their addictions prevented an awareness of the risk the drugs and

paraphernalia posed to the child, though each of them also

contended that the other was more responsible for the child’s death.

The jury found both parents guilty of reckless child abuse resulting

in death and Villalba guilty of two counts of drug possession.

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II. Severance

¶ 10 Villalba contends that the court erred by joining her and

Astacio’s cases for trial because the admission of Astacio’s

statements violated her Sixth Amendment confrontation rights or

otherwise unfairly prejudiced her defense. We disagree.

A. Severance Based on the Confrontation Clause

1. Legal Principles and Standard of Review

¶ 11 Under Crim. P. 8 and Crim. P. 13, the court may order two or

more cases to be joined for trial if the defendants are alleged to have

participated in the same act or series of acts arising from the same

criminal episode. See People v. Black, 2022 COA 127, ¶ 58. Joint

trials are favored under these circumstances because they conserve

resources, reduce the inconvenience or trauma to witnesses, and

encourage consistent verdicts. Samia v. United States, 599 U.S.

635, 654 (2023).

¶ 12 But joint trials can raise constitutional concerns when

evidence is admissible against one defendant, but not the other.

Bruton v. United States, 391 U.S. 123, 135-36 (1968). The

Confrontation Clause guarantees the right of a criminal defendant

“to be confronted with the witnesses against him.” U.S. Const.

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amend. VI. Thus, the Clause generally prohibits the admission at

trial of out-of-court “testimonial” statements — like a confession to

police. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

¶ 13 Still, the Confrontation Clause applies only to witnesses

“against the accused.” Id. at 50. And ordinarily, a codefendant

whose out-of-court statements are introduced at a joint trial “is not

considered to be a witness ‘against’ a defendant if the jury is

instructed to consider [the statements] only against [the]

codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).

¶ 14 But that principle has its limits. When a nontestifying

codefendant’s confession “facially incriminat[es]” the defendant, its

admission at a joint trial violates the defendant’s confrontation

rights, even if the court gives a proper limiting instruction. Samia,

599 U.S. at 647 (quoting Richardson, 481 U.S. at 207); accord

Bruton, 391 U.S. at 136-37. Under those circumstances, “the risk

that the jury will not, or cannot, follow instructions” is

constitutionally intolerable. Bruton, 391 U.S. at 135.

¶ 15 But to fall within Bruton’s “narrow exception” to the

presumption that juries follow their instructions, Richardson, 481

U.S. at 207, the codefendant’s statements must “directly implicate”

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the defendant in the charged criminal conduct, Samia, 599 U.S. at

648; see also Gray v. Maryland, 523 U.S. 185, 194 (1998)

(explaining that Bruton applies to statements that are “directly

accusatory”). “[I]nferential incrimination” is insufficient.

Richardson, 481 U.S. at 208.

¶ 16 We review de novo whether a court’s ruling deprived the

defendant of her Sixth Amendment confrontation rights. People v.

Ambrose, 2021 COA 62, ¶ 65. If a constitutional violation occurred

and the defendant preserved her claim of error, we will reverse

unless the prosecution proves that the error was harmless beyond a

reasonable doubt. People v. Jones, 2023 COA 104, ¶ 44.

2. Analysis

¶ 17 Villalba contends that admission of the detective’s testimony

that Astacio “told [Villalba] not to smoke fentanyl in bed with [the

child]” violated her confrontation rights. According to Villalba, the

statement “directly incriminated” her by “invit[ing] the inference

[that] she had previously smoked or would smoke fentanyl” around

the child, “such that Astacio told her not to.” For several reasons,

we reject that argument.

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¶ 18 First, the detective did not testify that Astacio told Villalba not

to smoke fentanyl in bed with the child. The detective clarified that

Astacio said he and Villalba had a “discussion,” during which they

“agree[d]” not to smoke drugs in the same room as the child.

¶ 19 Second, Astacio’s statement about the parents’ agreement did

not directly inculpate Villalba in the crime of child abuse.1 While

the statement implied that Villalba used drugs, it did not

“referenc[e] [her] smoking fentanyl around [the child],” as Villalba

asserts.

¶ 20 To be facially incriminating, a nontestifying codefendant’s

statement must “obviously refer[] to [the defendant’s] direct

participation in the offense.” United States v. Benson, 957 F.3d

218, 232 (4th Cir. 2020); see also United States v. Mikhel, 889 F.3d

1003, 1045 (9th Cir. 2018) (no Bruton violation where the

1 In a footnote in her reply brief, Villalba says that the admission of

Astacio’s statements requires a new trial on the drug possession
charges too. But she does not develop any argument that the
statements were directly incriminating with respect to the drug
charges. Even if they were, any error in admitting them was surely
harmless. Astacio’s statements were cumulative of overwhelming
evidence that Villalba possessed fentanyl and cocaine. See People v.
McFee, 2016 COA 97, ¶ 48 (Confrontation Clause violation is
harmless beyond a reasonable doubt when the evidence is
cumulative and the prosecution’s evidence of guilt is overwhelming).

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challenged statement did not “directly establish[] that [the

defendant] committed or conspired to commit” the charged offense);

United States v. Lage, 183 F.3d 374, 387 (5th Cir. 1999) (no Bruton

violation where the challenged statement placed the defendant at

the scene of the crime but was “utterly silent” as to whether he

participated in it).

¶ 21 Bruton illustrates the point. In that case, a law enforcement

witness testified that the codefendant had “orally confessed to him

that [the codefendant] and [the defendant] committed the armed

robbery.” 391 U.S. at 124. The statements “expressly implicating”

the defendant were so “powerfully incriminating” and “devastating

to the defendant” that the Court concluded a limiting instruction

would be ineffective. Id. at 135-36; see also Gray, 523 U.S. at 188,

192 (codefendant’s confession that he, the defendant, and a third

person had “participated in the beating that resulted in [the

victim’s] death” “directly implicated” the defendant).

¶ 22 The out-of-state cases on which Villalba relies involve directly

incriminating statements, so rather than advancing her position,

the cases merely prove Bruton’s rule. See State v. Tucker, 861 P.2d

24, 35-36 (Haw. Ct. App.) (in case involving child abuse resulting in

9
death, both defendants’ confrontation rights were violated by the

admission of their statements to police that the other had struck

the child in the head), cert. granted and case remanded, 857 P.2d

600 (Haw. 1993); State v. Ennis, 158 P.3d 510, 521 (Or. Ct. App.

2007) (in felony murder case, the defendant’s confrontation rights

were violated by the admission of the codefendant’s statement

establishing the direct participation of “[s]omeone else” in the

predicate offenses); State v. Vasquez, 311 P.3d 1115, 1119-20 (Ariz.

Ct. App. 2013) (in murder case, the defendant’s confrontation rights

were violated where the court failed to give a limiting instruction

and admitted the codefendant-brother’s statement that the murder

was “an accident,” “[t]hey . . . involved [the defendant] in it,” and

that family members had “wanted [them] to turn themselves in”).

¶ 23 The statement at issue here does not establish Villalba’s guilt.

Evidence that Villalba agreed not to smoke around the child was

hardly “devastating” to her defense. To the contrary, as the trial

court found, the evidence suggested that Villalba had not used

fentanyl while in bed with the child. True, some jurors might have

concluded from the statement that Villalba and Astacio were aware

of the risk of exposing the child to drugs. But as Villalba’s

10
argument acknowledges, that conclusion requires a logical

inference. And even then, the statement does not establish guilt.

The jury would have to link evidence of an awareness of a risk to

other evidence to arrive at a finding that Villalba disregarded the

risk and exposed the child to drugs. In other words, even if the

statement established the requisite mens rea, it did not establish

the actus reus, and, therefore, it was not directly incriminating.

See Gorman v. People, 19 P.3d 662, 665 (Colo. 2000) (To subject a

person to criminal liability, “there must be concurrence of the actus

reus, an unlawful act, and the mens rea, a culpable mental state.”);

Richardson, 481 U.S. at 208 (when a confession is “not

incriminating on its face, and bec[omes] so only when linked” with

other evidence, a limiting instruction is sufficient to avoid a

confrontation violation).

¶ 24 Third, the fact that the statement referred indirectly to

Villalba’s fentanyl use also did not facially incriminate her with

respect to the child abuse charge. It was not Villalba’s mere use of

drugs that formed the basis of the prosecution’s case; it was the

child’s proximity to the drugs and paraphernalia.

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¶ 25 Villalba also contends that once the court allowed Astacio’s

counsel to elicit the testimony about the parents’ agreement, which

named Villalba directly, the jury “would have had no trouble

identifying who Astacio was referring to” in some of his redacted

interview statements.

¶ 26 As Villalba conceded at oral argument, she never raised the

sufficiency of the redactions in the trial court, so this contention of

error is unpreserved (or, arguably, waived). See Forgette v. People,

2023 CO 4, ¶ 21 (to preserve an issue for appeal, the party must

lodge an objection “specific enough to draw the trial court’s

attention to the asserted error” (citation omitted)).

¶ 27 Regardless, the argument fails on the merits. The challenged

statements do not implicate Villalba in the charged offense, even in

light of the detective’s later reference to her.

¶ 28 For example, Astacio’s admission that he smoked fentanyl the

night before the child died and his explanation of how he typically

smoked fentanyl have nothing to do with Villalba. Nor was she

implicated in Astacio’s statement that he asked the friend to clean

up the house.

12
¶ 29 The statements that Astacio saw foils in the bedroom (“bagged

up and out of the way”) and that “there was . . . smoking” on the

way to the hospital might be prejudicial, but they did not facially

inculpate her in the crime of child abuse. The former statement is

only inferentially incriminating because it depends on “linkage” to

other evidence admitted at trial. “Where the necessity of such

linkage is involved, it is a less valid generalization that the jury will

not likely obey the instruction to disregard the evidence.”

Richardson, 481 U.S. at 208. The latter statement did not establish

that Villalba committed child abuse, only that she was likely

addicted to fentanyl, a fact that was supported by overwhelming,

uncontested evidence.

¶ 30 And even if the jury would have known that Astacio was

talking about Villalba when he said, “[W]e’re not gonna smoke like

this” (emphasis added) — i.e., in front of the child — “because you

can’t,” the statement is no more damaging than the similar

statement admitted through the detective, which we have concluded

was not facially incriminating.

¶ 31 Accordingly, we conclude that the admission of Astacio’s

interview statements at trial did not deprive Villalba of her

13
confrontation rights and, therefore, did not require severance of the

parents’ trials.

B. Severance Under the Rules of Criminal Procedure or Statute

1. Legal Principles and Standard of Review

¶ 32 Even when the Confrontation Clause is not implicated, a

defendant may be entitled to sever her trial from that of her

codefendant. Under Crim. P. 14 and section 16-7-101, C.R.S.

2025, severance is mandatory when the prosecution or a

codefendant seeks to introduce material prejudicial evidence

admissible in a joint trial but not against the moving defendant in a

separate trial. See People v. Maass, 981 P.2d 177, 183 (Colo. App.

1998). The evidence must be so “inherently prejudicial” that the

jury would not be able to limit its use to its proper purpose despite

an instruction. Peltz v. People, 728 P.2d 1271, 1277 (Colo. 1986)

(citation omitted).

¶ 33 If a defendant is not entitled to severance as a matter of right,

the trial court may nonetheless exercise its discretion to sever

codefendants’ trials. In determining whether the court should have

granted a discretionary severance, we consider (1) whether the

number of defendants or the complexity of evidence is such that the

14
jury will confuse the evidence and the law applicable to each

defendant; (2) whether, despite admonitory instructions, evidence

admissible against one defendant will improperly be considered

against another; and (3) whether the defenses are antagonistic.

Black, ¶ 60.

¶ 34 We review a trial court’s decision to deny a severance motion

for an abuse of discretion, Peltz, 728 P.2d at 1275, and will reverse

for misjoinder only if a defendant demonstrates actual prejudice.

People v. Bondsteel, 2015 COA 165, ¶ 33, aff’d, 2019 CO 26,

overruled on other grounds by, Garcia v. People, 2022 CO 6, ¶ 36.

2. Analysis

¶ 35 Villalba contends that she was entitled to a severance either as

a matter of right or of discretion.

¶ 36 To support her argument for mandatory severance, Villalba

essentially reasserts her Confrontation Clause arguments,

contending that Astacio’s statements implicated her in criminal or

otherwise reprehensible conduct such that the jury was likely to

use the evidence against her, even with a proper instruction.

¶ 37 Again, the only statements that arguably implicated Villalba

were Astacio’s admission that “there was . . . smoking” on the way

15
to the hospital and that he saw foils in the bedroom. As noted,

these statements were not facially incriminating with respect to the

child abuse charge. And in light of the other evidence of Villalba’s

addiction, we cannot say that these statements were otherwise so

prejudicial that the jury would have used them for an improper

purpose. See People v. Pappadiakis, 705 P.2d 983, 986 (Colo. App.

1985) (mandatory severance was not necessary where the

challenged evidence did not “implicate[] or refer[] to [the] defendant,

and the court . . . instructed the jury that the evidence was not to

be considered against the defendant”), aff’d sub nom., Peltz, 728

P.2d at 1273; People v. Carillo, 946 P.2d 544, 551 (Colo. App. 1997)

(mandatory severance not necessary where challenged testimony

“did not refer to the defendant or mention his name”), aff’d on other

grounds, 974 P.2d 478 (Colo. 1999).

¶ 38 In the alternative, Villalba argues that the court erred by

declining to grant a discretionary severance. We disagree for a few

reasons.

¶ 39 First, contrary to Villalba’s argument, the case was not

“complex.” For one thing, there were only two defendants, and the

evidence was not particularly complicated. See People v. Johnson,

16
30 P.3d 718, 726 (Colo. 2000) (upholding denial of severance in

similar circumstances). And while some evidence was admissible

only against one of the defendants, most of the evidence supporting

the prosecution’s theory of the case — that both Villalba and

Astacio had recklessly surrounded their son with drugs and drug

paraphernalia — was admissible against both defendants. Cf.

People v. Adams, 678 P.2d 572, 574 (Colo. App. 1984) (“Mutual

participation of defendants in an offense is considered a logical

basis for refusing to sever.”).

¶ 40 Second, as we have concluded, any prejudice from evidence

admissible against one of the defendants but not the other was

mitigated by the court’s limiting instructions, and nothing in the

record suggests that we should abandon the presumption that the

jury followed those instructions. See Peltz, 728 P.2d at 1277.

¶ 41 Third, we disagree with Villalba that her defense was

antagonistic to Astacio’s. Antagonistic defenses are “mutually

exclusive” or “irreconcilable,” meaning “the acceptance of one

defense would tend to preclude the acquittal of the other

defendant.” People v. Gutierrez, 2021 COA 110, ¶ 11 (citation

omitted). And while it is true that both Villalba and Astacio argued

17
that the other was more responsible for the child’s death, the jury

could feasibly have acquitted both defendants of reckless child

abuse if it had accepted the argument that their addiction

precluded them from disregarding a known risk to the child. Thus,

the defenses did not rise to the level of antagonism necessary to

require severance. Id.

¶ 42 In sum, we conclude that the court did not abuse its

discretion by denying the motion to sever.

III. Detective’s Testimony Concerning Vape Pens

¶ 43 Villalba also contends that the trial court reversibly erred by

admitting speculative testimony that a vape pen could be used to

smoke fentanyl.

¶ 44 During cross-examination of the lead detective, Astacio’s

counsel asked if a person could “smoke drugs, illegal narcotics,”

including “schedule 2 controlled substances,” “as well as . . .

nicotine” with a vape pen. Villalba’s counsel did not object. The

detective responded that she “assume[d] . . . [that] if you are able to

fill your own vape pen, that you can put whatever you’d like in it.”

¶ 45 The jury submitted multiple questions for the detective.

Question 15 had four subparts. And Question 16(b) asked, “In your

18
time serving as law enforcement, have you ever come across a vape

pen modified for fentanyl use or have [you] heard of this type of

modification being possible?”

¶ 46 During a bench conference, the parties discussed the

submitted questions, after which the court asked both defendants’

lawyers, “So what are we objecting to?” In response, Astacio’s

counsel objected to Question 15, subpart two, concerning whether

drug residue on a mattress could be “breath[ed] into the body.”

Villalba’s counsel then objected to Question 15, subpart one, “on

the same grounds as No. 2.”

¶ 47 When the court agreed to “sustain the objection to 1 and 2 on

Question No. 15,” Villalba’s counsel responded, “Yeah, okay” and

“I’m fine with that.” He did not object to any other question,

including Question 16(b).

¶ 48 In response to Question 16(b), the detective testified,

I’ve heard that fentanyl can be in anything at
this point. The vape pens that I have seen
have been . . . changed to not look like a vape
pen. So I assume that vape pens can come in
all sorts of shapes, sizes, and anything could
be in them.

Villalba’s counsel did not object to this testimony.

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¶ 49 Villalba now argues that the court erred by allowing the

detective to give “speculative” expert testimony in the guise of lay

opinion testimony.

¶ 50 We conclude that Villalba waived any claim of error concerning

Question 16(b). Waiver is “the intentional relinquishment of a

known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39

(citation omitted). A waiver may be explicit, as when a defendant

“expressly abandons an existing right or privilege,” or it may be

implied, as when a defendant “engages in conduct that manifests

an intent to relinquish a right or privilege or acts inconsistently

with its assertion.” Forgette, ¶ 28. A waived claim of error presents

nothing for an appellate court to review. People v. Kessler, 2018

COA 60, ¶ 38.

¶ 51 Although a mere failure to object does not in all cases

constitute a waiver, Rediger, ¶ 44, agreeing to a proposed course of

action with full knowledge of the surrounding facts and

circumstances does, Forgette, ¶ 34 (The defendant “intentionally

relinquished his known right to object to [a] sleeping juror and

therefore waived any such objection for appellate review” because

20
his “counsel was fully aware of the sleeping juror but did not object

or ask the court to take any action to address the issue.”).

¶ 52 Villalba’s counsel reviewed each juror question and had an

opportunity to object to any of the questions, but he objected only

to parts of Question 15. That he did not object to Question 16(b) is

not surprising, as he had not objected to an earlier question about

the possible use of vape pens. By failing to object, he implicitly

agreed that the court could ask Question 16(b). Therefore, this

claim of error is waived. See People v. Tee, 2018 COA 84, ¶¶ 19-26

(concluding that by acquiescing in the court’s remedial actions, the

defendant waived any claim of error concerning juror pre-

deliberations); Kessler, ¶ 36 (defense counsel’s express agreement

that Breathalyzer results were admissible constituted a waiver of

right to argue the opposite on appeal).

¶ 53 And because the detective’s unreviewable response to the juror

question was cumulative of her earlier testimony about vape pens,

any error in admitting the response was not plain. Cf. People v.

Douglas, 2015 COA 155, ¶ 41 (no plain error where improperly

admitted testimony is cumulative of properly admitted evidence).

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IV. Cumulative Error

¶ 54 We reject Villalba’s argument that she is entitled to a new trial

based on cumulative error. “For reversal to occur based on

cumulative error, a reviewing court must identify multiple errors

that collectively prejudice[d] the [defendant’s] substantial

rights . . . .” Howard-Walker v. People, 2019 CO 69, ¶ 25. Because

we have found no errors, the cumulative error doctrine does not

apply. See People v. Krueger, 2012 COA 80, ¶ 78.

V. Disposition

¶ 55 The judgment of conviction is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.

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