Peo v. Diaz

23CA0213 Peo v Diaz 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0213
Adams County District Court No. 21CR333
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Gerald Diaz,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LUM
Tow and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 31, 2025

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Lead Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, David Gerald Diaz, appeals his convictions for

trafficking of a minor for sexual servitude (sex trafficking), sexual

assault on a child, and sexual exploitation. We affirm.

I. Background

¶2 Diaz’s adopted daughter’s close friend, K.H., accused Diaz of

engaging in inappropriate behavior toward her, beginning around

the time she was in seventh grade. K.H. alleged that Diaz (1) offered

her money in exchange for sexual acts and nude photos; and

(2) touched her buttocks, breasts, and thighs on multiple occasions.

During trial, K.H. testified generally about these events and said

they happened frequently, but she didn’t testify about specific dates

or give explicit details of each occurrence. Defense counsel

primarily argued that K.H.’s “fuzzy” recollection of events made her

allegations unreliable and not credible. A jury convicted Diaz of sex

trafficking, sexual assault on a child, and sexual exploitation, but it

acquitted him of contributing to the delinquency of a minor.

¶3 Diaz raises three issues on appeal. First, he argues that the

trial court erred by excluding evidence about K.H.’s prior sexual

experience under the rape shield statute. Second, Diaz contends

the trial court erred by allowing the prosecution to introduce K.H.’s

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prior inconsistent statement without proper foundation. And third,

he asserts that these errors cumulatively deprived him of his due

process right to a fair trial. We address each argument in turn.

II. Admissibility of Evidence Under Colorado’s Rape Shield
Statute

¶4 Diaz argues that the trial court erroneously excluded evidence

of K.H.’s sexual history after the prosecution “opened the door”

when K.H. testified that she was unfamiliar with certain sexual

acts. We disagree.

A. Additional Background

¶5 During direct examination of K.H., the prosecutor asked K.H.

to review a text message in which Diaz asked, “Do you want to sit

on a happy face?” When asked what this message meant to her,

K.H. testified, “That [Diaz] wanted to go down [perform oral sex] on

me but in a different way.” The prosecutor asked if K.H. could

explain what she meant by “in a different way” and K.H. said,

“Honestly, I don’t know. I never done any of that. So I could only

guess, like, him sitting — or laying down.”

¶6 During a break later in the day, defense counsel said that she

had “information” that conflicted with K.H.’s statement that she

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hadn’t done “this stuff” before and asserted that K.H.’s testimony

opened the door to its admission. The trial court concluded that

any evidence about whether K.H. had “engaged in that type of

conduct at some point in time” wasn’t relevant to the charges

against Diaz and precluded defense counsel from cross-examining

or impeaching her with it.

B. Applicable Law and Standard of Review

¶7 We review a trial court’s evidentiary rulings, including rulings

on admissibility under the rape shield statute, for an abuse of

discretion. People v. Cook, 2014 COA 33, ¶ 34.

¶8 Under the rape shield statute, evidence of a victim’s prior or

subsequent sexual activity is presumed irrelevant except (1) to show

“prior or subsequent sexual conduct with the actor”; (2) to show

“the source or origin of semen, pregnancy, disease, or any similar

evidence of sexual intercourse”; or (3) if the defendant makes an

offer of proof showing that the evidence is relevant to material

issues in the case. § 18-3-407(1)(a)-(b), (2)(e), C.R.S. 2022;1 see

also People v. Harris, 43 P.3d 221, 226 (Colo. 2002) (noting that the

1 Throughout this opinion, we cite the version of the rape shield

statute in effect at the time of trial in this case.

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rape shield statute balances the “defendant’s rights and the victim’s

privacy interest” by limiting evidence of the victim’s sexual history

and admitting such evidence only upon a showing that the evidence

is relevant and material).

¶9 A party intending to offer evidence of the victim’s prior sexual

activity must file a written motion that includes an offer of proof

establishing how the evidence overcomes the presumption of

irrelevance. § 18-3-407(2)(a). Absent good cause, a motion must be

filed at least thirty-five days before trial. Id. “An in camera hearing

may be held during trial if evidence first becomes available at the

time of the trial or for good cause shown.” § 18-3-407(2)(d).

¶ 10 The concept of “opening the door” generally “represents an

effort by courts to prevent one party in a criminal trial from gaining

and maintaining an unfair advantage by the selective presentation

of facts that, without being elaborated or placed in context, create

an incorrect or misleading impression.” People v. Murphy, 919 P.2d

191, 195 (Colo. 1996). A defendant may overcome the rape shield’s

presumption that evidence of the victim’s past sexual conduct is

irrelevant “if the prosecution makes the evidence relevant by

‘opening the door’ to the evidence.” Id. However, the defendant

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must still make a sufficient offer of proof showing that the evidence

is relevant to a material issue in the case. Id. at 197.

C. The Trial Court Didn’t Err by Excluding the Evidence

¶ 11 Defense counsel made no offer of proof before trial and during

trial only said, “[W]e do have information to the contrary. We

believe that statement opened — opens the door and pierces the

rape shield layers; so we just submit that to the Court.” Diaz

argues that the evidence was relevant to show that he didn’t commit

the acts charged. However, Diaz doesn’t explain — and we can’t

discern — how evidence of K.H.’s sexual experience with a third

party tends to prove or disprove that Diaz committed any of the

charged crimes.

¶ 12 To the extent Diaz contends that the evidence impugned K.H.’s

credibility by showing that she lied about her sexual experience

when describing how she interpreted Diaz’s text message, the trial

court didn’t abuse its discretion by concluding that Diaz didn’t

overcome the presumption of irrelevance. First, defense counsel’s

offer of proof didn’t adequately explain the nature of the evidence to

facilitate the trial court’s (or our) review. See Itin v. Ungar, 17 P.3d

129, 136 (Colo. 2000) (“An offer of proof must sufficiently inform the

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court of the nature and substance of the proposed evidence both to

enable the trial court to exercise its discretion . . . and to provide a

basis for appellate review.”). We can assume from context that the

“information” defense counsel sought to elicit was that K.H. had

engaged in some sexual act at some point in time. But it’s unclear

what K.H. meant when she said she hadn’t “done any of that.” She

could have meant the specific sexual position that she thought Diaz

was describing in his text message, oral sex, or any sexual act.

Given the lack of detail about the defense’s “information,” it’s

unclear from the record whether the excluded evidence would have

impeached K.H.’s credibility at all.

¶ 13 In any event, a “defendant cannot introduce evidence of a

victim’s prior sexual history to attack the credibility of a victim as a

witness.” People v. Daley, 2021 COA 85, ¶ 136 (citation omitted);

see also People v. Vialpando, 804 P.2d 219, 223 (Colo. App. 1990)

(concluding that the trial court didn’t err by excluding evidence of

prior sexual conduct offered for the purpose of demonstrating that

the victim lied when she told her physician that she hadn’t had

sexual intercourse before the date of the offense). Admitting

evidence of K.H.’s sexual experience solely to attack her credibility

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is exactly what the statute aims to prevent: embarrassing “fishing

expeditions” into a victim’s sexual history. People v. McKenna, 585

P.2d 275, 278 (Colo. 1978).

¶ 14 For these reasons, we conclude the trial court didn’t abuse its

discretion by excluding evidence about K.H.’s prior sexual conduct.

III. Prior Inconsistent Statement

¶ 15 Diaz next argues that the trial court reversibly erred by

admitting testimony that K.H. had previously told a forensic

interviewer that Diaz offered her 100 dollars in exchange for

performing oral sex on her. Specifically, he contends that the trial

court improperly admitted the testimony as a prior inconsistent

statement because the foundation for its admission was lacking.

We discern no reversible error.

A. Additional Background

¶ 16 During direct examination of K.H., the prosecutor asked about

times Diaz offered her money for sexual acts. K.H. said this

happened “many times,” and although she couldn’t remember

“exactly when and where,” she said it mostly happened “in the car.”

She also testified that Diaz would say things like, “I’ll give you a

hundred dollars . . . I just need permission.” When asked if Diaz

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ever offered to perform sexual acts on her, K.H. testified that Diaz

would sometimes say he “would want to go down on [her]” and

“more than once” offered her money in exchange for that act.

¶ 17 Later, during the forensic interviewer’s direct examination, the

prosecutor asked the interviewer if K.H. ever told her that Diaz said,

“I’ll give you a hundred dollars if you let me go down on you.” The

interviewer responded, “Yes, she did tell me that.”

B. Applicable Law

¶ 18 The use of a witness’s prior inconsistent statement during trial

is governed by section 16-10-201, C.R.S. 2025, and CRE 613. Rule

613(a) allows the use of prior inconsistent statements for

impeachment purposes, but the examiner must first call the

witness’s attention to the time and place the statement was made.

Section 16-10-201 allows parties in criminal cases to use prior

inconsistent statements as substantive evidence if (1) the witness

has the “opportunity to explain or deny the statement” while

testifying or is available to further testify during the trial and (2) the

prior inconsistent statement is a matter within the witness’s own

knowledge. § 16-10-201(1)(a)-(b).

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C. Preservation and Standard of Review

¶ 19 We reject Diaz’s argument that he preserved this issue for

review. While talismanic language isn’t required to preserve an

objection, a party must draw the trial court’s attention to the

asserted error to give the court a meaningful opportunity to correct

or prevent it. Rael v. People, 2017 CO 67, ¶ 17. At the start of the

testimony at issue, Diaz objected to a leading question. The

prosecutor then said that it was “follow up to . . . impeachment” of

K.H.’s prior testimony under section 16-10-201, but Diaz didn’t

object further. This wasn’t sufficient to call the court’s attention to

the impeachment error Diaz raises on appeal. People v. Ujaama,

2012 COA 36, ¶ 37 (An issue for review is unpreserved when a

party makes an objection “on unspecific grounds which would not

have alerted the trial court to the issue of which the [party] now

seeks review.”).

¶ 20 Accordingly we review this issue for plain error. Hagos v.

People, 2012 CO 63, ¶ 14. For an error to be plain, it must be both

“obvious and substantial.” People v. Miller, 113 P.3d 743, 750

(Colo. 2005). To be substantial, the error must “so undermine the

fundamental fairness of the trial itself as to cast serious doubt on

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the reliability of the judgment of conviction.” Hoggard v. People,

2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073,

1078 (Colo. 2005)).

D. Analysis

¶ 21 Diaz contends it was improper to admit, through the forensic

interviewer, K.H.’s statement that Diaz said, “I’ll give you a hundred

dollars if you let me go down on you,” because the prosecutor never

asked K.H. about the specific statement, nor did the prosecutor give

her the opportunity to explain or deny it.

¶ 22 However, even if we assume — without deciding — that the

trial court erred and that the error was obvious, it wasn’t

substantial. K.H. testified that there were many times Diaz offered

money in exchange for sexual acts, including that he offered to “give

[her] a hundred dollars” and would sometimes offer money to “go

down on [her].” In other words, K.H.’s testimony covered the

substance of her prior statement to the forensic interviewer, if not

the exact phrasing. And we don’t perceive that the jury would have

had a significantly more negative view of K.H.’s credibility without

the interviewer’s testimony regarding her statement. Thus, any

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error in admitting K.H.’s statement doesn’t cast serious doubt on

the reliability of Diaz’s conviction.

IV. Cumulative Error

¶ 23 Lastly, Diaz argues his convictions should be reversed because

the errors cumulatively deprived him of his due process rights to a

fair trial and impartial jury. To be entitled to a new trial under the

doctrine of cumulative error, a defendant must show that “the

cumulative effect of [multiple] errors and defects substantially

affected the fairness of the trial proceedings and the integrity of the

fact-finding process.” Howard-Walker v. People, 2019 CO 69, ¶ 24

(quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)). We have

identified only one assumed error in this case and concluded it

wasn’t substantial. The doctrine of cumulative error is therefore

inapplicable.

V. Disposition

¶ 24 For these reasons, we affirm the judgment of conviction.

JUDGE TOW and JUDGE MOULTRIE concur.

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