State v. Avitso

• Decision Date: 10 May 2022
• Docket Number: A-21-690
• Parties: State of Nebraska, Appellee, v. Komlanvi M. Avitso, Appellant.
• Court: Nebraska Court of Appeals

State of Nebraska, Appellee, v. Komlanvi M. Avitso, Appellant.

No. A-21-690

Court of Appeals of Nebraska

May 10, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: Timothy P. Burns Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Lori A. Hoetger for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

Pirtle, Chief Judge, and Bishop and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH JUDGE.

I. INTRODUCTION

In the early morning hours of May 19, 2019, Komlanvi M. Avitso, a Lyft driver, accepted a passenger. This trip led to events which culminated in Avitso's conviction of first degree sexual assault. On appeal, Avitso contends that the district court erred in allowing a nurse to testify regarding the victim's out-of-court statements made during a sexual assault exam, that the evidence was insufficient to support his conviction, and that the sentence imposed was excessive. For the reasons stated herein, we affirm.

II. STATEMENT OF FACTS

On May 18, 2019, the victim spent an evening out with friends where she consumed numerous alcoholic beverages at a restaurant and, later, at a bar. By the end of the evening, because the victim had become extremely intoxicated, one of the victim's friends called a Lyft vehicle to take the victim home. The victim provided her home address which the friend entered into the Lyft phone application. At 12:35 a.m., Brandon Kroenke, a Lyft driver, arrived to take the victim to the requested destination. A group of the victim's friends walked the victim from the bar and helped her into the backseat of the vehicle, but none accompanied the victim for her ride home.

During the trip, Kroenke noticed that the victim, who he described as being "pretty inebriated," had passed out. As he approached the destination address provided through the app, he realized that the address was incorrect because the destination address was an intersection. Despite Kroenke's attempt to wake the victim to get the correct address for the destination drop-off, the victim was unable to keep her head up, stay awake, or provide him with a correct address. At some point, the victim woke up and requested that Kroenke drop her off at the next gas station. At 1:19 a.m. on May 19, 2021, Kroenke dropped off the victim at a gas station located near 96^th and Q Streets.

Shortly thereafter, the victim requested a second Lyft. Avitso responded to that second request and picked up the victim at the gas station at 1:24 a.m. The victim, who was initially unable to recall the events of the night after leaving the bar, woke up around 9 or 10 a.m. in her apartment wearing the same clothes that she put on the night before. The victim's phone contained a receipt from Lyft with a driver named "Jules," later identified as Avitso. Despite the fact that the victim resided only 5 or 10 minutes away from the gas station where Avitso had picked her up, the Lyft receipt reflected that the trip lasted from 1:24 a.m. until 2:40 a.m. and stated that the ride ended at an address that was 30 blocks from the victim's apartment.

After remembering a few details of the night, including that she had been in a Lyft vehicle for what she felt like was "an extremely long time," was in the front seat of that vehicle, saw her jeans around her ankles, felt a brief touch on her leg, and heard a male voice with an accent ask her if she was on her period to which she replied "yes," the victim became concerned that she had been sexually assaulted and contacted law enforcement. After law enforcement conducted an investigation which included a sexual assault examination conducted on the victim, Avitso was charged with first-degree sexual assault.

During the June 2021 jury trial, evidence was admitted as previously set forth. The victim also testified as to other details she remembered from the early morning hours on May 19, 2019, including that she had spoken with someone at the bar and that she believed, at one point, the Lyft vehicle was parked in a parking lot because she recalled seeing concrete.

During law enforcement's investigation of the victim's report, officers collected records from Lyft, determined that the vehicle used during the second Lyft trip was registered to Avitso, collected surveillance video from the gas station, and obtained data from the victim's cell phone including information regarding the victim's location during the course of the evening. Based on the investigation, officers determined that Avitso picked up the victim at about 1:24 a.m., originally set the destination for one address, and then changed the destination to another address one minute later. The victim was not familiar with either of the addresses. Data from the victim's cell phone showed that the victim's phone was moving at 1:26 a.m., was stationary from 1:32 a.m. until 1:52 a.m. near 108^th and Harrison where a gas station is located, and that the phone was stationary from 2:05 a.m. to 2:52 a.m. at the drop-off address listed on the Lyft receipt near 119^thand P Street which officers identified as a parking lot of a commercial building. Officers determined that the victim was not dropped off at the 119^th and P Street location because video surveillance showed Avitso's vehicle pulling into a hotel parking lot at 3:23 a.m. The hotel clerk indicated that Avitso asked for a motel room, but upon being advised of the cost, Avitso left stating he was looking for a room for $45. While Avitso was speaking with the clerk, a witness at the hotel observed a motionless woman reclined in the front passenger seat of Avitso's vehicle. Surveillance video showed Avitso's vehicle backing out of the hotel parking lot at 3:33 a.m. The hotel was located one mile from the victim's home address. At 3:44 a.m., the victim's cellular data indicated that her phone was again stationary and at an address which corresponded with her apartment complex. At 3:30 a.m. and 3:41 a.m., the victim received telephone calls from an unrecognized number; investigators later determined that the number belonged to Avitso.

Following the interview with law enforcement, the victim was taken to the hospital where she consented to a sexual assault (SANE) examination conducted by nurse practitioner Jami Dowell. Dowell testified that she explained the SANE procedure to the victim and told the victim that it was important to tell her what she could remember about the assault. Dowell stated that her job was to complete a head-to-toe examination, look for anything that was hurting or bothering the victim, and to collect forensic evidence. Dowell testified that she needed to know the victim's account of the events to know why the victim was seeking medical care and to help guide the treatment and diagnosis of the victim. In addition to the facts as stated above, the victim told Dowell that she had not had consensual sex with anyone for five days prior to the SANE examination.

Dowell did not observe any injuries during her external pelvic exam of the victim; however, during the internal examination, Dowell observed swelling and redness. Although Dowell testified that those types of injuries could have been caused by irritation from physical touch or from an infection, she ruled out an infection because the victim was not exhibiting symptoms which typically accompany an infection. Dowell further ruled out menstruation as the cause of the irritation. She testified that the irritation to the labia was significant and was deep enough that it went in between the labial fold which indicated to Dowell that the irritation was not caused by something momentary. Dowell stated that this area is not easy to get to on the genitalia and in order for her to see it during the exam, she had to use both hands and spread the area completely open.

During her examination of the victim, Dowell collected swabs of areas including the victim's labia, mons pubis, and vagina. DNA testing on these swabs generated a DNA profile consistent with a mixture from 2 individuals. The swab from the victim's mons pubis contained a DNA mixture profile indicating the mixture was 60 percent contributed by the victim and 40 percent contributed by Avitso. The swab from the victim's labia contained a DNA mixture profile indicating the mixture was 40 percent contributed by the victim and 60 percent contributed by Avitso. The DNA profile from the mons pubis was 3.52 octillion times more likely to have originated from the victim and Avitso than from the victim and another random individual and the DNA profile from the labia swab was 3.54 octillion times more likely to have originated from the victim and Avitso than from the victim and another random individual. The vaginal swab generated a single DNA profile from the victim which was common due to the abundance of female cells in the vagina which can mask a potential DNA mixture and, further, because the victim was menstruating, the likelihood of generating a single DNA profile was increased since blood also contains an abundance of female cells.

Avitso who testified in his own defense, provided his account of the night in question and denied assaulting the victim. According to Avitso, the victim instructed him to deviate from the GPS instructions. He stated that the victim later requested that Avitso take her to a gas station. Avitso agreed and when they arrived, he helped her out of the car and into the bathroom at the gas station. At some point, he informed the cashier that the victim had been in the bathroom and was not responding. The cashier unlocked the bathroom door, and the victim was sitting...