Opinion by
"[ 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 degree burglary.
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 408 and (2) rejected his alternate suspect jury instruction. ~
18 As to the former issue, we agree that the "no conclusion" DNA evidence was improperly admitted; however, we find the evi-dentiary error harmless. As to the latter issue, we conclude that the district court properly rejected the tendered instruction. Accordingly, we affirm Mr. Marks's convie-tions.
I. Background
T4 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.
¶ 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 Riehi-son. 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.
II. Admission of “Inconclusive” and “No Conclusion” DNA Results Without Accompanying Statistics
¶ 8 Mr. Marks contends that the trial court erred in admitting evidence of “inconclusive” and “no conclusion” DNA results without evidence of them statistical significance. He argues that the admitted evidence was irrele: vant 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.
A. 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 alleles.
¶ 10 A DNA profile is created by documenting alleles at fifteen specific locations, known as markers or loci, in the DNA chain.
1
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,
¶ 11 The prosecution closed its case with its DNA expert, Susan Berdine. Ms. Ber-dine 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
{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 (8) 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 SW.'s DNA profile matched the profile from the hat found at the crime seene, 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 complicated meanings.
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 cireumstances, 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.
2
See Scientific Working Group on DNA Analysis Methods, SWGDAM - Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories 4.4, https://perma.ceo/D7TGT-R8KEF (SWGDAM Guidelines)
3
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),
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," 4
20 Mr. Marks filed a pretrial motlon 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 jury that, for certain samples, DNA tests yielded results that were “of no value for interpreta-non »
{21 The district court domed the motlon In rejecting Mr., Marks's proposed stipulation, it emphasized the unique power of DNA evidence:
[Ilt has been my experience that over the last several years, juries, although they will tell you in voir dire they are able to judge-just judge the case based just on the testimony at trial, it is remarkable how many people think that CSI-type shows are real life, that there is always DNA, and there's always fingerprints, that there are always-that there is always some conclusive forensic evidence. That's just the case.
The People have the right to address that in their case in chief to, as [the prosecutor] said, try to persuade the jury of the thoroughness of their investigation, especially since the defense is that they have the wrong man.
22 On appeal, Mr, Marks challenges the district 'court's admission of the "inconclusive" and "no conclusion" results of the DNA testing.
B. Standard of Review
23 We review the district court's decision to admit evidence under the deferential abuse of discretion standard. People v. Jimenez,
C. Applicable Law and Analysis
124 The admission of expert testimony about DNA. evidence is governed by CRE 702 and 408. People v. Shreck,
1, Relevance
€25 Evidence is relevant if it would be useful to the jury, meaning it would assist the fact finder in either understanding other evidence or in determining a fact in issue. Lanari v. People,
126 DNA evidence is ordinarily useful to the jury because it tends to make it more or less probable that the defendant is connected to the crime. See, e.g., People v. Rojas,
27 Ms. Berdine testified that an "inconclusive" result meant that "a person might be there as a possible contributor or [a person] might be excluded but I cannot even make that determination so the DNA results don't support that a person's DNA is there, and they don't support that [a person's] DNA is not there." She clarified that she was offering no opinion on the inconclusive results and that "the DNA does not support a conclusion either way."
1 28 This testimony-if introduced for the purpose of directly implicating Mr. Marks in the crime-does not meet the minimum rele-vaney standards under CRE 401. Relevant evidence makes some fact more or less likely. Ms. Berdine's testimony, however, did nothing to alter this calculus,. Her inconclusive findings provided no information to the jury. After hearing that the DNA test for Mr. Marks was inconclusive, the jury had no additional information with which to determine whether Mr. Marks participated in the crime or was present at the scene. See Deloney v. State,
129 The "no conclusion" results are also irrelevant as direct evidence against Mr. Marks, but for a slightly different reason. On their face, these results suggested a connection between Mr. Marks and the crime because, as Ms. Berdine testified, in those instances she did know that Mr. Marks was included as a possible contributor or match to the DNA sample.
5
What she did not know was how many other people could have been possible contributor$. The absence of that information rendered the testimony unhelpful to the jury. As one court has noted, if a combination of alleles is so common that a majority of people in the relevant population could not be excluded, then testimony that the defendant cannot be excluded is weak evidence that he or she is the source. But without knowing that statistical probability, jurors cannot be expected.to assess the value of the evidence. Johnson,
(30 For this reason, several courts have held that, without statistical probability data, a conclusion that the defendant is "included," or "cannot be excluded,"
6
as as possible match- is irrelevant. See Williams,
{ 81 We are persuaded by the reasoning of these courts, which is in line with case law from Colorado. The supreme court has cautioned that a DNA match result, unaccompanied by its statistical significance, "is essentially meaningless." Fishback v. People,
182 Indeed, in arguing for the admission of Ms. Berdine's "inconclusive" and "no conclusion" 'results, the prosecution conceded that testimony suggesting the defendant could be included as a source 'of the DNA would be improper without accompanying statistics: "We're not going to have [Ms. Berdine] opine to an opinion with a situation where there is no statistical value if it could be the. defendant's DNA because we do agree that would be improper." And yet, that is exactly what Ms. Berdine did-she told the jury that a "no conclusion" result meant that Mr, Marks was included as a possible contributor to the DNA sample but that she could not provide evidence of the statistical significance of those results.
183 On appeal, as they' did in the district court, the People argue that although the "inconclusive" and "no conclusion" results were not useful in determining a fact related to Mr, Marks's connection to the crime, the evidence was nonetheless relevant because it demonstrated the thoroughness of the police investigation. That was necessary, the People say, to rebut Mr. Marks's theory that the police's shoddy investigation led them to arrest the wrong person. -
" 34 We agree that evidence may be independently relevant to show that police conducted a thorough investigation. See People v. Harland,
11 85 Even so (and even assuming the evi-denee's maximum probative value), this independent basis for admission increases the probative value of the "inconclusive" and "no conclusion" results from none to minimal. "The probative worth of any particular bit of evidence is affected by the searcity or abundance of other evidence on the same point." People v. Saiz,
T 36 In any event, even if the evidence has independent relevance, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice," confusion of the issues, or misleading the jury. CRE 403; Salcedo v. People,
137 We turn first to the evidence of "inconclusive" results. Though the evidence may be only minimally relevant, we discern no prejudice from its admission. An "inconclusive test is evidence of nothing" and "evidence of nothing [is] not prejudicial{ ]." Clark v. State,
1388 But as to evidence of the "no conclusion" results, its minimal probative value was substantially outweighed by a risk of misleading the jury. Ms. Berdine's "no conclusion" testing result meant that she could determine that a person was included as a possible contributor, but that she could not provide "statistical weight" for the result and, therefore, she could not reveal her conclusion. That left the jury with only half the necessary information: that Mr. Marks was included, or could not be excluded, as a poss1-ble contributor to the DNA on various items of evidence.
‘II39 Without the probability assessment, though a jury does not know What to make of the fact that a person's DNA pattern is a possible match to the DNA evidence samples; "the jury does not know whether the patterns are as common as pictures with two eyes, or as unique as the Mona Lisa." United States v. Yee,
40 DNA is dlfferent from other 1dent1fy— ing evidence. If a witness testified that she could not exclude the defendant as a suspect because the defendant, like the suspect, had brown hair, a juror would know to give almost no weight to that testimony. Jurors are presumed to have some knowledge of the frequency of this characteristic within the general population. But because a juror is unable to observe a person's DNA, "the juror has no idea of the frequency of a particular DNA profile." Mattei,
T41°' As the district court noted, jurors place great emphasis on DNA evidence-so much so that the evidence has long enjoyed a status of "mythic infallibility" for juries. Virgin Islands v. Byers,
142 There was a substantial 'risk in this case that the jury would have guessed, and miscalculated, the probability that Mr. Marks's DNA was present on the shotgun, the gloves, and the hair in SW .'s hand, Accordingly, we conclude that thevprobaitive value of the "no cohclusion” results was substantially outweighed by the risk of unfair prejudice and misleading the jury, The district court therefore abused its discretion in admitting that evidence."
8. Harmless Error
148 Having determined that the district court's admission of the "no conclusion" results was error, we now consider whether the error was harmless. The inquiry under harmless error is not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict. People v. Gaffney,
1 44 We conclude that the error was harm-legs, The "no coriclusion" results were presented during testimony that also included Ms. Berdine's conclusions that Mr. Marks was a match to the DNA found on the T-shirt and. was included as a possible contributor (with accompanying statistical data) to the DNA obtained from the hooded swestshirt. Neither side discussed the "no conclusion" results in closing argument or otherwise emphasized the implication of those results.
45 Nor was DNA evidence the only evidence linking Mr. Marks to the crime. The five young people who testified each identified a person named Dominic as the second robber. Two of the witnesses had identified Mr. Marks from a photo lineup and one provided an in-court identification.. Two of them testified that when Mr. Marks started talking about committing a robbery, they parted ways with the group. The witnesses who remained in the car with Mr, Marks and Mr. Richison confirmed that Mr.. Marks talked about stealing marijuana from someone and directed the driver of the car to a house where he picked up a shotgun,
46 Finally, Mr. Richison testified that he planned the robbery with Mr. Marks and that Mr. Marks had fired the shots from the handgun that killed S.W. Though Mr. Richi-son knew Mr. Rocha-Lovatos from a stint in juvenile detention, the defense did not present any evidence that Mr. Richison would have had a reason to cover for Mr. Rocha-Lovatos by falsely accusing Mr. Marks.
T47 As for an alternate suspect, the evidence did not support much of the defense's theory. For example, the prosecution argued that the second robber had used the T-shirt, which had Mr. Marks's DNA on it, to hide his face during the robbery, consistent with reports from S.W.'s husband and son. Mr. Marks responded that Mr. Rocha-Lova-tos had used the T-shirt and that his own DNA was present only because the T-shirt had been mixed in with dirty laundry at the apartment he shared with Mr. Rocha-Lova-tos. Mr. Rocha-Lovatos's DNA was not on the T-shirt, though, and Mr. Richison testified that the T-shirt recovered from the scene belonged to him and that he had loaned it to Mr, Marks to use during the robbery. " |
148 Though Mr. Rocha-Lovatos gave a detailed confession to police, the confession was not unequivocal-at numerous times during his interview with detectives, he insisted that he had not been involved in the crime. In any event, his confession, if true, established that Mr. Marks was one of the perpetrators. |
{149 We acknowledge that Mr. Marks's first trial ended in a hung jury, and that nearly identical evidence was admitted at the second trial,. While that may be a factor to consider in evaluating the effect of the error, see United States v. Street,
III. Alternate Suspect Jury Instruction
€50 Mr. Marks also contends that the trial court erred in refusing to give his tendered jury instruction regarding evidence that an alternate suspect, Mr. Rocha-Lova-tos, committed the crime. We disagree.
4[ 51 At the close of Mr. Marks's first trial, defense counsel tendered the following jury instruction:
You have heard evidence that Edsgar Rocha L{ojvatos committed the offense with which the defendant is charged. The defendant is not required to prove Edsgar Rocha Lovatos' guilt, It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant's guilt, Evidence that Edsgar Rocha LfoJvatos committed the charged offenses may by itself leave you with a reasonable doubt.
If after considering all of the ev1denee, including any evidence that another person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty.
After reviewing the tendered instruction, the district court informed Mr. Marks that it would not give the proposed instruction as a regular instruction, but suggested that Mr. Marks revise it as. a theory of defense instruction. Mr. Marks declined this offer, indicating that he did not want a theory of defense instruction.
152 At the close of the second trial, Mr. Marks tendered the same alternate suspect instruction and again declined a theory of defense instruction,. The district court rejected the instruction as argumentative. -
153 We review 'the district court's decision to give, or not give,, a jury instruction for an abuse of discretion, "which occurs when the court's decision is manifestly arbitrary, unreasonable, or unfair,. People v. Omwanda,
154 The trial court did not err in rejecting Mr. Marks's tendered instruction because he was not entitled to a separate instruction defining the defense, other than a theory of defense instruction. Colorado law recognizes two types of defenses: affirmative defenses and traverses, An affirmative defense admits the conduct charged, but seeks to justify it. A traverse seeks to disprove an element of the crime. People v. Huckle
¶ 55 Mr. Marks's alternate suspect theory is a traverse; he did not seek to justify the conduct, but rather he contended that the prosecution could not prove his identity, which is an element of every offense. 1 Wayne R. LaFave, Sub. Crim. L. § 1.4(b) (2d ed.).
¶ 56 People v. Huckleberry is dispositive. In that case, the supreme court affirmed the trial court's rejection of a substantially similar proposed instruction when defense counsel declined to rewrite it as a theory of defense instruction. Although the proffered instruction in Huckleberry related to an alibi defense, in substance it was nearly identical to Mr. Marks's proposed instruction. The Huckleberry instruction informed the jurors that they had to acquit if they had a reasonable doubt that the defendant was present at the erime, and that it was not the defendant's burden to prove the alibi
8
The supreme court held that the defendant was not entitled to the instruction because, unlike an affirmative defense, an alibi defense merely "emphasizes the significance of particular issues of fact the People must establish in every criminal case," namely, that the defendant was present at and responsible for the crime.
57 The same is true of an alternate suspect defense. Mr. Marks's alternate suspect instruction merely highlighted the prosecution's duty to establish that it was actually he, and not a third person, who committed the crime with which he was charged. "No special instructions are necessary to inform the jury of the People's burden to prove that a defendant alleged to have committed an offense did commit that offense." Id.; see also People v. Nelson,
158 Moreover, a trial court may appropriately refuse to give an instruction which places undue emphasis on a single issue presented by the evidence. People v. Zapata,
159 In any event, Mr. Marks was not prevented from presenting his alternate suspect theory of defense. During trial, Mr. Marks presented evidence that Mr. Rocha Lovatos was the true perpetrator, including that he initially confessed to the murder and was given a "sweetheart deal" to cooperate. Defense counsel emphasized this evidence during closing argument, arguing at length that Mr. Rocha-Lovatos, and not Mr. Marks, murdered SW. Accordingly we discern no abuse of discretion in the district court's refusal to give Mr. Marks's tendered instruction.
IV. Conclusion
1 60 The judgment is affirmed.
Notes
. The Denver Crime Laboratory's profile also includes a gender marker.
. Once a person has been "excluded" as a possible source of the DNA sample, statistics about how many other people would also be excluded as the possible source are not necessary to help the jury understand the significance of an "excluded" result.
. The SWGDAM Guidelines, developed in conjunction with the federal DNA advisory board, are national quality assurance standards for DNA analysis. See 42 U.S.C. § 14131.
, A hat belonging to SW, was tested, but all individuals, other than S.W. and her husband, were excluded as possible contributors to the samples taken from the hat.
. We note that "no conclusion"-to mean that a conclusion has been reached but, because accompanying statistical data is not available, the conclusion will not be revealed-is not a DNA typing result recognized by the SWGDAM Guidelines. Nor have we found that typing result described in any case law.
. "Included as a possible contributor," the term used by Ms. Berdine during her testimony, has the same meaning as the term "cannot becex-cluded." See SWGDAM Guidelines 3.6 (Comparison of DNA Typing Results).
. The People argue that Mr, Marks waived this issue by declining to revise and resubmit the fury instruction, If Mr. Marks were challenging the district court's failure to give a theory of defense instruction, we agree that the invited error doctrine would bar review of that claim. See Hansen v. State Farm Mut. Auto. Ins. Co.,
. - The full instruction read:
Evidence has been introduced tending to establish an alibi which amounts to a contention that John F. Huckleberry was not present at the time when or at the place where he is alleged to have committed the offense charged. If after consideration of all the evidence in the case you have a reasonable doubt whether the defendant was present at the time and place the alleged offense was committed, you must acquit him.
The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.
People v. Huckleberry,