and County of Denver District Court No. 12CR20000. Honorable
William Robbins, Judge.
H. Coffman, Attorney General, Jillian J. Price, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield,
Colorado, for Defendant-Appellant.
and J. Jones, JJ., concur.
[¶1] Dominic Chee Marks appeals the judgment
of conviction entered after a jury verdict finding him guilty
of first degree felony murder, aggravated robbery, and first
[¶2] Mr. Marks raises two issues on appeal,
arguing that the district court committed reversible error
when it: (1) admitted certain DNA evidence without
accompanying statistical data in violation of CRE 702 and 403
and (2) rejected his alternate suspect jury instruction.
[¶3] As to the former issue, we agree that
the " no conclusion" DNA evidence was improperly
admitted; however, we find the evidentiary error harmless. As
to the latter issue, we conclude that the district court
properly rejected the tendered instruction. Accordingly, we
affirm Mr. Marks's convictions.
[¶4] On January 25, 2011, two armed men
forced their way into the home of S.W., a marijuana dealer,
in search of money and marijuana. The robbery was interrupted
by the arrival of S.W.'s husband and son. As S.W.'s
husband struggled with the robber who was carrying a shotgun,
the other robber fired his handgun. One of the bullets struck
S.W. and killed her. The robbers fled, leaving the shotgun
behind. Police recovered the handgun, a holster, and some
items of clothing in the adjacent yard.
[¶5] The next day, a woman contacted police
and identified Mr. Marks as one of the perpetrators, but she
did not provide enough information for the police to obtain
an arrest warrant. The police did not uncover further leads
until February 2012, when another woman reported to police
that her boyfriend, Edsgar Rocha-Lovatos, had confessed to
killing S.W. During a subsequent interview with police, Mr.
Rocha-Lovatos alternately told detectives that he had
committed the crime with Mr. Marks, who was then his
roommate, and that he was not involved but had heard the
details of the crime from Mr. Marks. Police arrested Mr.
Rocha-Lovatos and Mr. Marks and charged them, as
codefendants, with felony murder, aggravated robbery, and
[¶6] But by late 2012, the police had
identified and interviewed a group of young people who had
driven with the robbers to S.W.'s home, and they reported
that Mr. Marks had committed the robbery not with Mr.
Rocha-Lovatos, but with their friend, Cody Richison. Mr.
Richison soon confessed and he, too, identified Mr. Marks as
his partner in the robbery.
[¶7] Mr. Marks first proceeded to trial in
April 2013, but the jury could not reach a verdict on any of
the counts, and the court declared a mistrial. At the second
trial, as it had in the first trial, the prosecution
presented testimony from the group of young people who were
present, at different times, in the period leading up to the
robbery, including the woman who first contacted police about
Mr. Marks's involvement in the crime and Mr. Richison.
And, the prosecution again presented DNA evidence, some
definitive and some inconclusive. For his part, Mr. Marks
argued, as he had at the first trial, that he was not
involved in the crime and that Mr. Rocha-Lovatos and Mr.
Richison had robbed and shot S.W. The second jury convicted
Mr. Marks of all charges.
Admission of " Inconclusive" and " No
Conclusion" DNA Results Without Accompanying
[¶8] Mr. Marks contends that the trial court
erred in admitting evidence of " inconclusive" and
" no conclusion" DNA results without evidence of
their statistical significance. He argues that the admitted
evidence was irrelevant and, even if minimally relevant, its
probative value was substantially outweighed by the danger of
unfair prejudice. We agree in part, but conclude that the
error was harmless.
The DNA Evidence
[¶9] Deoxyribonucleic acid -- DNA -- is
found in the nucleus of human cells and contains genetic
information that determines the physical structure and
characteristics of each individual. DNA is made up of
twenty-three pairs of chromosomes, which in turn contain
thousands of genes. The variations in each gene are known as
[¶10] A DNA profile is created by
documenting alleles at fifteen specific locations, known as
markers or loci, in the DNA chain. The analyst creates a DNA
profile from the sample obtained from an item of evidence and
then compares that DNA profile to other profiles obtained
from known individuals (usually the victim and suspect or
suspects). The profiles are compared by looking for allele
matches at each of the designated markers. Each match can be
accorded statistical significance based on population
frequency data compiled by the FBI. The statistics indicate
the probability that a randomly selected person, if tested,
would have the same DNA profile as that of the sample left at
the crime scene. In simple terms, as the number of matching
alleles at each marker increases between two samples, "
the odds of two people having the same profile become
vanishingly small." State v. Williams, 574
N.W.2d 293, 297 (Iowa 1998).
[¶11] The prosecution closed its case with
its DNA expert, Susan Berdine. Ms. Berdine created DNA
profiles from samples obtained from seven items of evidence
recovered from the crime scene -- the shotgun, the handgun, a
holster, a hat belonging to S.W., a sweatshirt, a pair of
gloves, and a T-shirt -- as well as two strands of hair found
in S.W.'s hand. In most instances, more than one sample
was taken from an item of evidence. In almost all cases, the
DNA samples were mixed, meaning that more than one
person's DNA was present on the item of evidence. Ms.
Berdine then compared the DNA profiles derived from those
samples to the profiles of Mr. Marks, Mr. Rocha-Lovatos, Mr.
Richison, S.W., and S.W.'s husband.
[¶12] Each of Ms. Berdine's conclusions
about the comparisons fell into one of five categories, three
of which have commonly understood meanings: (1) the profiles
matched, meaning that there was an infinitesimal
chance that another person's DNA profile would be the
same as the profile obtained from the item of evidence; (2) a
person was excluded as a possible contributor,
meaning that he or she could not be the source of the DNA
found on the item of evidence; or (3) a person was
included as a possible contributor, meaning that he
or she could be the source of the DNA but a complete match
between the two profiles had not been established.
[¶13] Ms. Berdine provided statistical
probabilities for the first and third categories. When she
testified that S.W.'s DNA profile matched the profile
from the hat found at the crime scene, she gave the jury some
statistical context for that conclusion -- the chances that a
random person might also match the DNA on the hat, Ms.
Berdine said, were one in twenty-eight quintillion. When she
testified that S.W.'s husband was included as a possible
contributor to the DNA sample obtained from the shotgun, she
acknowledged that one in six random people would also be
considered possible contributors based on their DNA patterns.
[¶14] Most of the results from the DNA
testing, however, were " inconclusive" or " no
conclusion." These two categories of results have more
[¶15] One common reason for the "
inconclusive" results was the difficulty in attributing
to any one person the alleles present in a mixed DNA sample.
As Ms. Berdine explained, a DNA profile looks like a string
of numbers, with two numbers at each marker. In a
single-source DNA sample, the analyst can compare the numbers
from the profiles at each marker and determine if there is a
match. But in a mixed sample, where two or more people have
contributed DNA, there are more than two numbers at each
marker, and, assuming fairly equal contributions by each
person, the numbers could combine in any way. Therefore, a
person whose profile contains any combination of those
numbers might be a possible contributor; that is, his or her
DNA profile numbers might match a sample at a certain marker,
but they might not. In those instances, Ms. Berdine
characterized the results as " inconclusive."
[¶16] As for the " no conclusion"
category of results, Ms. Berdine explained that in some
instances, she would be able to determine whether the
person's DNA was present or absent in a sample, but her
lab did not have the capability to assign statistical
probabilities to the result. In those circumstances, she
labeled the result " no conclusion."
[¶17] Statistical probabilities are not
provided (because they are not useful) when a person is
excluded as a possible contributor. See
Scientific Working Group on DNA Analysis Methods, SWGDAM
Interpretation Guidelines for Autosomal STR Typing by
Forensic DNA Testing Laboratories 4.4,
https://perma.cc/D7GT-R8KF (SWGDAM Guidelines). So, Ms.
Berdine could only have meant that, in some instances, she
could identify a person as being included as a
possible contributor, but, because she could not give the
odds that other, random people might also be contributors,
she would simply say that she had no conclusion. With respect
to a sample obtained from the shotgun, Ms. Berdine testified
that the profile was suitable for excluding possible
contributors (Mr. Rocha-Lovatos and Mr. Richison), and for
including a major contributor (S.W.'s husband), but that
it was not suitable " for including possible
minor contributors with any kind of statistical weight given.
So those are . . . N-C for no conclusion."
[¶18] In her DNA comparisons using Mr.
Marks's DNA profile, Ms. Berdine reached " no
conclusion" on six samples obtained from four different
items of evidence -- the shotgun, the hooded sweatshirt, the
gloves, and the hair in S.W.'s hand.
[¶19] Mr. Marks's DNA was a match to the
DNA samples found on the T-shirt, and he was included (with
statistical weight given to the inclusion) as a possible
contributor to a sample taken from the hooded sweatshirt.
Results were otherwise " inconclusive."
[¶20] Mr. Marks filed a pretrial motion in
limine to exclude evidence of the " inconclusive"
and " no conclusion" results. He argued that the
evidence was irrelevant, as it did not help the jury
determine whether he was a possible source of the DNA
obtained from the items of evidence and, without accompanying
statistical data, the DNA evidence was confusing and
misleading. Mr. Marks suggested that the parties inform the