State v. Avitso ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. AVITSO
NOTICE: 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).
STATE OF NEBRASKA, APPELLEE,
V.
KOMLANVI M. AVITSO, APPELLANT.
Filed May 10, 2022. No. A-21-690.
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.
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
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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 96th 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 108th 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 119th
and P Street which officers identified as a parking lot of a commercial building. Officers
determined that the victim was not dropped off at the 119th and P Street location because video
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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
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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 inside on the
toilet with her head down and her pants to her knees. Avitso testified that he asked the victim if
she still needed a ride to which she replied that she was coming. After some time, Avitso returned
to ask the victim if she was still coming and provided her with her purse, her phone, and toilet
paper. Several minutes later, the victim emerged from the bathroom and reentered Avitso’s vehicle
and sat in the front seat. Avitso testified that the victim again provided different directions and, at
one point, the victim requested that he stop in the middle of the road. Avitso pulled into a parking
lot and attempted to determine the victim’s home address, but the victim was not able to provide
Avitso with a consistent answer. Avitso testified that he obtained the victim’s driver’s license from
inside her purse which listed a Lincoln address. He asked the victim if she resided in Lincoln, and
she told him she did. Avitso informed the victim that he could not transport her to Lincoln and the
victim requested that Avitso take her back to the gas station. Avitso testified that he returned to
the gas station, but the victim refused to exit his vehicle. Because he was unable to determine her
address, Avitso stated that he went to two different hotels but that the victim did not have the
money to afford the hotels. When he returned to the car, Avitso stated the victim told him that she
did not want to have sex with him because she did not have sex with black men and was on her
period. Avitso testified that he told the victim to exit his vehicle, but she again refused to do so.
He further recounted that the victim was unable to provide him with her correct home address, but
he obtained her correct home address from the victim’s cell phone. Avitso stated that after dropping
off the victim at her apartment complex, he called the victim twice to make sure she made it to her
apartment, but the victim did not answer.
Avitso also called several witnesses to speak to his reputation for honesty in the community
including his wife, his father-in-law, a co-worker, an acquaintance, a friend, his brother, a law firm
investigator, and his pastor. The State recalled Detective David Pecha as a rebuttal witness to
testify regarding the results of a search he conducted on Avitso’s cell phone following the incident,
which search demonstrated visits to a website associated with escort services, searches for interior
car washes, and searches for flights to Canada.
The jury convicted Avitso of the charged offense and a presentence investigation report
was ordered. At the sentencing hearing, Avitso presented evidence of his accomplishments since
immigrating to the United States which included obtaining higher education degrees, being a
“family man” with a wife and two young children, having a minimal criminal history with no
crimes of violence, and being assessed as medium/moderate to low risk to reoffend. The district
court acknowledged Avitso’s circumstances including that Avitso was a productive member of
society, but ultimately determined that it could not overlook the serious nature of the offense. The
court sentenced Avitso to 10 to 12 years’ imprisonment with credit of 765 days for time served.
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Avitso has timely appealed to this court and is represented by different counsel than represented
him at trial and sentencing.
III. ASSIGNMENTS OF ERROR
Avitso assigns as error that the district court (1) abused its discretion in allowing Jami
Dowell, the SANE nurse, to testify to the out of court statements made during the sexual assault
examination; (2) erred in finding as a matter of law that the evidence was sufficient to support his
conviction; and (3) abused its discretion in imposing an excessive sentence.
IV. STANDARD OF REVIEW
In proceedings where the Nebraska evidence rules apply, the admissibility of evidence is
controlled by the Nebraska evidence rules; judicial discretion is involved only when the rules make
such discretion a factor in determining admissibility. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687(2012). Where the Nebraska evidence rules commit the evidentiary question at issue to the
discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.
Id.Apart from rulings under the residual hearsay exception, an appellate court will review for
clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination whether the court admitted evidence over a hearsay objection or
excluded evidence on hearsay grounds. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317(2018). Whether a statement was both taken and given in contemplation of medical diagnosis or
treatment is a factual finding made by the trial court in determining the admissibility of evidence.
Id.; State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be
affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the conviction. State v. Hassan, 309 Neb. 644,
962 N.W.2d 210 (2021). Only where evidence lacks sufficient probative force as a matter of law
may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable
doubt. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 57(2021).
V. ANALYSIS
1. HEARSAY
Avitso first argues that the district court erred in admitting into evidence statements made
by the victim to Dowell during the victim’s medical examination. Specifically, Avitso argues the
victim’s statements to Dowell relating to the length of time she was in the Lyft, the victim’s
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statements to the perpetrator that she wanted to go home, and the perpetrator’s question to her as
to whether she was on her period, were all inadmissible hearsay and the court erred in overruling
defense counsel’s hearsay objection to the proffered statements.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered to prove the truth of the matter asserted. Neb. Rev. Stat. § 27-801(3) (Cum. Supp.
2020). A declarant’s out-of-court statement offered for the truth of the matter asserted is
inadmissible unless it falls within a definitional exclusion or statutory exception. Neb. Rev. Stat.
§ 27-802 (Reissue 2016). State v. Jedlicka, supra.One such exception to the hearsay rule is Neb. Rev. Stat. § 27-803(3) (Reissue 2016) which
provides:
Subject to the provisions of section 27-403, the following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
....
(3) Statements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
(We note that, as of August 28, 2021, the language previously contained in § 27-803(3) is now
located at Neb. Rev. Stat. § 27-803(4) (Cum. Supp. 2020).)
Rule 803(3) is based on the notion that a person seeking medical attention will give a
truthful account of the history and current status of his or her condition in order to ensure
proper treatment. In order for statements to be admissible under rule 803(3), the party
seeking to introduce the evidence must demonstrate (1) that the circumstances under which
the statements were made were such that the declarant’s purpose in making the statements
was to assist in the provision of medical diagnosis or treatment and (2) that the statements
were of a nature reasonably pertinent to medical diagnosis or treatment by a medical
professional.
State v. Jedlicka, 297 Neb. 276, 286, 900 N.W.2d 454, 464 (2017).
A statement is generally considered admissible under the medical purpose hearsay
exception, Neb. R. Evid. 803(3), § 27-803(3), if gathered for dual medical and investigatory
purposes. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).
Under rule 803(3), the fundamental inquiry when considering a declarant’s intent “is
whether the statement, despite its dual purpose, was made in legitimate and reasonable
contemplation of medical diagnosis or treatment.” Under rule 803(3), there need not be
direct evidence of the declarant’s state of mind; instead, the appropriate state of mind of
the declarant may be reasonably inferred from the circumstances. Determining if the
circumstances warrant inferring the appropriate state of mind is necessarily a fact-specific
determination.
State v. Jedlicka, 297 Neb. at 290-91, 900 N.W.2d at 466.
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While recognizing that “statements are ‘generally considered admissible under the medical
purpose hearsay exception if gathered for dual medical and investigatory purposes,’ as long as the
statements ‘were made in legitimate and reasonable contemplation of medical diagnosis or
treatment,’” Avitso argues:
An important limitation on this exception is that statements relating to fault are
generally not admissible. [State v. Vigil, 283 Neb. 129,] 141[, 810 N.W.2d 687 (2012)].
Courts do allow statements related to fault, however, when the alleged victim is a child,
especially when the child has a familial relationship with the abuser. Id. This is because
the child cannot be treated effectively if sent “back into the abuser’s clutches.” Id.Though Dowell testified that she relies on a patient’s description of what led to the
events in her treatment, the statements here were not for the purpose of medical diagnosis
or treatment. [The victim’s] statements as to the length of the car ride, that [the victim] kept
asking to go home, and that Avitso asked her if she was on her period, are not relevant to
the issue of treatment. Dowell did not elaborate on how these statements were pertinent to
her treatment of [the victim]. Additionally, [the victim] had reported to the hospital for a
SANE exam at the directions of officers, so it is likely that at least a major purpose of [the
victim’s] statements were to aid the investigation.
Brief for appellant at 16. We disagree.
The question here is whether the victim’s statements to Dowell, which included
information such as the length of the car ride, the victim’s requests to go home, and the questions
to the victim about whether she was on her period, were made in legitimate and reasonable
contemplation of medical diagnosis or treatment. We hold that they were.
In this case, the victim could not specifically remember what happened to her while she
was under the influence of intoxicating liquor. For that reason, in order to determine what, if any,
medical event happened to her, Dowell sought to elicit what the victim could remember from the
series of events which took place the previous night. Through the victim’s recounting of these
events, Dowell was able to determine that the victim may have been sexually assaulted, which then
led her to perform a physical examination which included, but was not limited to, DNA sampling.
Under these circumstances, we do not find the challenged statements the victim made to Dowell
as statements of fault as Avitso suggests. Instead, although made for dual medical and
investigatory purposes, we find the victim’s statements to Dowell were made in legitimate and
reasonable contemplation of medical diagnosis or treatment. Stated differently, Dowell’s questions
and the victim’s challenged responses were narrowly tailored to determine what happened to the
victim the prior evening in order to determine whether the victim required medical treatment.
Accordingly, the district court did not err in admitting the victim’s statements to Dowell over
defense counsel’s objections. This assigned error fails.
2. INSUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION
Avitso next argues that the evidence was insufficient to support his conviction for first
degree sexual assault.
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When reviewing a criminal conviction for sufficiency of the evidence to sustain the
conviction, the relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Grant, 310 Neb. 700, 968 N.W.2d 837(2022).
As charged, in order to establish Avitso’s guilt of the offense of first degree sexual assault,
the State was required to prove, beyond a reasonable doubt, that Avitso subjected the victim to
sexual penetration “without the consent of the victim” or that he “knew or should have known that
the victim was mentally or physically incapable of resisting or appraising the nature of his . . .
conduct.” Neb. Rev. Stat. § 28-319(1)(a) and (b) (Reissue 2016).
The statutory definition of “sexual penetration” in effect at the time of the offense was
sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings of the victim’s body which can
be reasonably construed as being for nonmedical or nonhealth purposes. Sexual penetration
shall not require emission of semen.
Neb. Rev. Stat. § 28-318(6) (Reissue 2016). Although not applicable to the instant case, we note
that, effective September 1, 2019, the statutory definition of sexual penetration has since been
amended as follows:
sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings of the victim’s body which can
be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement
purposes. Sexual penetration shall not require emission of semen.
Neb. Rev. Stat. § 28-318(6) (Supp. 2019) and (Cum. Supp. 2020) (emphasis supplied). The 2020
amendment to § 28-316, effective November 14, 2020, did not change the statutory definition of
sexual penetration.
Penetration is “the slightest intrusion into the genital opening” and the State can prove
penetration by either direct or circumstantial evidence.” State v. Hibler, 302 Neb. 325, 347-48, 923
N.W.2d 398, 417 (2019); State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019). It is not necessary
that the vagina be entered for sexual penetration or that the hymen be ruptured. State v. Hibler,
supra. Testimony that the perpetrator touched the victim’s skin folds known as the labia and
between the lips of the victim’s vagina is sufficient to prove entry of the vulva or labia and is
sufficient to support a finding of sexual penetration. State v. Hibler, supra; State v. Smith, supra.Avitso argues that there was insufficient evidence in the record to establish that he
subjected the victim to sexual penetration. We disagree. Here, although the victim was unable to
remember all of the details surrounding the evening of the incident, evidence of penetration was
located during the victim’s SANE exam. During the victim’s internal pelvic exam, Dowell
observed swelling and redness. Dowell ruled out menstruation and an infection as the causes and
testified that the irritation to the labia was significant and was deep enough that it went in between
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the labial fold which indicated to Dowell that the irritation was not caused by something
momentary. Additionally, Avitso’s DNA evidence was located on swabs of the victim’s labia and
mons pubis. The swab from the victim’s mons pubis contained a DNA mixture profile containing
60 percent contributed by the victim and 40 percent contributed by Avitso. The swab from the
victim’s labia contained a DNA mixture profile containing 40 percent contributed by the victim
and 60 percent contributed by Avitso. The DNA profile from the victim’s 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. When considered with the evidence of events reconstructed from the examination of
cellular phones, the Lyft receipts, and the victim’s memory of events, this evidence was sufficient
to establish penetration. An appellate court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are
within a fact finder’s province for disposition. State v. John, 310 Neb. 958, 969 N.W.2d 894(2022). This assignment of error fails.
3. EXCESSIVE SENTENCE
Avitso’s final assignment of error is that sentence imposed was excessive. Here, Avitso
was convicted of first degree sexual assault, which is a Class II felony. See § 28-319(2). Class II
felonies are punishable by 1 to 50 years’ imprisonment. See Rev. Stat. § 28-105 (Reissue 2016).
Avitso’s sentence of 10 to 12 years’ imprisonment is within the statutory limits.
When sentences imposed within statutory limits are alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court abused its discretion in considering
well-established factors and any applicable legal principles. State v. Morton, 310 Neb. 355, 966
N.W.2d 57 (2021). The relevant factors for a sentencing judge to consider when imposing a
sentence are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in
the commission of the crime. Id. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that
includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id. We further note that § 28-319(2)
provides, in part, that “[t]he sentencing judge shall consider whether the actor caused serious
personal injury to the victim in reaching a decision on the sentence.”
At the time of preparation of the presentence investigation report (PSR), Avitso was 41
years old and married with two children. Avitso, who was born in Lomo Togo, Africa, moved to
the United States in 2004, and obtained U.S. residency. Avitso has a bachelor’s degree and two
master’s degrees, was employed full-time at Bellevue University, and worked part-time for Lyft.
Avitso’s criminal history is minimal, consisting of convictions for no city vehicle registration,
failure to wear seatbelts, no vehicle liability insurance, and no financial responsibility. Both the
level of service/case management inventory and the Vermont Assessment of Sex Offender Risk II
(VASOR II) assessed Avitso as a medium/moderate to low risk to reoffend. The PSR indicated
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that Avitso did not accept responsibility for committing the crime, that customs enforcement had
placed a hold on Avitso, and that Avitso would not be eligible to return to his job at Bellevue
University. The PSR recommended a sentence of imprisonment because Avitso was not an
appropriate candidate for community-based supervision.
The PSR also included the victim’s impact statement in which the victim set forth that
[in] the following days, weeks, and months [after the sexual assault,] I became a shell
version of myself. I couldn’t sleep unless it was during the day. [I] couldn’t eat, [I] couldn’t
work. I would have panic attacks that would have me hyperventilating in the middle of my
office on the days I did make it into work. I didn’t feel safe in my own apartment . . .
The victim stated that she is in therapy and has suffered from stress and anxiety. She also stated
that “‘safe’ rides such as Lyft and Uber . . . would never really feel safe to [her] again.”
The record reflects that the district court considered the appropriate sentencing factors after
reviewing the PSR, the facts of the case, and the arguments made by the parties. Although the
district court acknowledged that Avitso was a “good family man” and “a productive member of
the community,” the court placed particular weight on the seriousness of the crime charged and
noted that, despite overwhelming DNA evidence, Avitso failed to take responsibility or admit his
guilt.
There is nothing in this record which indicates that the court did not properly consider the
relevant factors. Further, based upon the factors including that the sentence imposed was within
the statutory sentencing range, the nature of the offense, and Avitso’s failure to accept
responsibility for the offense, the sentence imposed was not an abuse of discretion. This
assignment of error fails.
VI. CONCLUSION
For the reasons stated above, we affirm Avitso’s conviction and sentence.
AFFIRMED.
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