The People of the State of Colorado v. Rayon D. Hamilton
No. 16CA1468
Colorado Court of Appeals
July 3, 2019
2019COA101
City аnd County of Denver District Court No. 13CR3362, Honorable Michael J. Vallejos, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
July 3, 2019
2019COA101
No. 16CA1468, People v. Hamilton — Evidence — Hearsay — Hearsay Exceptions — Hearsay Within Hearsay — Authentication — Machine-generated Records
A division of the court of appeals decides that a computer-generated report of the contents of a cell phone is not hearsay so long as it was created without human input or interaction. To qualify as a computer-generated report that does not constitute hearsay, the рarty seeking to introduce the report must lay a foundation that it was machine-generated without human input. In addition, the division holds that a trial court commits error by giving multiple jury instructions that unnecessarily highlight the defendant‘s prior conviction.
Division IV
Opinion by JUDGE LIPINSKY
Román and J. Jones, JJ., concur
Announced July 3, 2019
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 2 Hamilton contends that the district court erred by (1) admitting hearsay to establish that neither Hamilton‘s phone nor the victim‘s phone contained text messages about which Hamilton had testified; (2) admitting evidence of two other instances in which Hаmilton had been accused of sexual assault; (3) adding qualifying “factually innocent” language to the acquittal instruction; and (4) adding a reference to a prior conviction in the instruction advising the jury that Hamilton had been acquitted of a prior sexual assault charge.
¶ 3 We agree with his first contention, reverse on that basis, and remand for a new trial. We also agree that the district court erred in adding a reference to Hamilton‘s prior conviction to the acquittal instruction. We reject his remaining contentions.
¶ 4 While at bars with friends, J.F. ran into Hamilton, whom she had met through an ex-boyfriend. Hamilton bought a round of shots for J.F. and her friends. J.F. testified she thought her “drink had drugs in it” because she could not remember much after she had “taken the shot.” J.F. told the jury the next thing she remembered was waking up on her stomach in an apartment, with her hands being held above her head, and Hamilton was having sex with her.
¶ 5 J.F. testified that she did not agree to have sexual intercourse with Hamilton. According to her testimony at trial, she kept saying “no” and tried to wiggle away from him.
¶ 6 Hamilton admitted to having sexual intercourse with J.F. but claimed it had been consensual. He testified that J.F. had been awake throughout the encounter.
¶ 7 The district court instructed the jury on one count of second degree kidnapping, two counts of sexual assault, and one count of distribution of a controlled substance. Hamilton was convicted on one of the sexual assault counts and the distribution count and was acquitted on the remaining counts.
¶ 8 Hamilton told the investigating detective, Bryan Slay, that J.F. had sent him multiple texts while they were drinking together at the bars. He claimed that J.F. had also sent him texts the day after the alleged sexual assault. Hamilton gave similar testimony at trial.
¶ 9 Detective Slay testified that police department personnel downloaded the contents of Hamilton‘s and J.F.‘s phones and generated reports (the Reports) reflecting the phones’ contents. At trial, the prosecutor did not seek to introduce the Reports into evidence or call as witnesses the police department employees who had examined the phones or generated the Reports. Instead, Detective Slay testified that, based on his review of the Reports, neither phone contained text messages from J.F. to Hamilton.
¶ 10 Hamilton contends that Detective Slay‘s testimony about the contents of the Reports was hearsay, the admission of which violated
¶ 11 Analysis of the admissibility of Detective Slay‘s testimony concerning the Reports requires us to determine whether the Reports were inadmissible hearsay, whether Detective Slay‘s testimоny constituted a second layer of inadmissible hearsay, and whether the prosecutor established the reliability and authenticity of the Reports.
A. The Hearsay Issues
1. Standard of Review
¶ 12 We review a trial court‘s evidentiary rulings for an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). However, a trial court‘s decision on whether a statement constitutes hearsay is a legal conclusion, which we review de novo. People v. Medina, 25 P.3d 1216, 1223 (Colo. 2001); see also Dutch v. United States, 997 A.2d 685, 689 (D.C. 2010) (concluding that the determination of whether a statement falls under an exception to the hearsay rule is a legal conclusion).
¶ 13 The harmless error standard applies to review of trial errors of nonconstitutional dimension preserved by objection. Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119.
¶ 14 We review unpreserved trial errors for plain error. Hagos, ¶ 14, 288 P.3d at 120. “Plain error is obvious and substantial.” Id. We reverse under plain error if the error “so undermined the fundamental fairness of the trial itself sо as to cast serious doubt on the reliability of the judgment of conviction.” Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
2. Preservation of Hamilton‘s Arguments Regarding Detective Slay‘s Testimony
¶ 15 The defense did not object to the prosecutor‘s two questions to Detective Slay regarding the contents of Hamilton‘s phone. Hamilton, however, directs us to two other places in the record where he asserts he preserved this issue.
¶ 17 Second, Hamilton asserts that his counsel preserved his argument regarding the contents of his phone during a bench conference addressing a juror‘s proposed questions to Detective Slay: “Were there texts on [J.F.‘s] phone to [Hamilton]? . . . Does the phone company have no record of the texts? Did you investigate with [Hamilton‘s] and [J.F.‘s] phone companies?”
¶ 18 We therefore conclude that Hamilton did nоt preserve his argument that the district court erred in admitting Detective Slay‘s testimony regarding the contents of Hamilton‘s phone, but preserved his argument that the court erred in allowing Detective Slay to testify regarding the contents of J.F.‘s phone.
3. The Reports Were Hearsay
a. The Prosecutor Introduced the Content of the Reports into Evidence to Prove the Truth of the Matter Asserted
¶ 19 Hearsay is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
¶ 20 A declarant is “a person who makes a statement.”
¶ 21 During rebuttal, the prosecutor introduced the content of the Reports through Detective Slay‘s testimony. He testified that he had “the tech guys work on [the phone],” and that he was able to view “the report that [he] had the technical people run.” Detective Slay then said that, based on his review of the Reports, Hamilton‘s and J.F.‘s phones did not contain any texts between Hamilton and J.F.
¶ 22 We disagree with the People‘s argument that the prosecutor did not introduce the content of the Reports into evidence for the truth of the matter asserted. In characterizing the content of the Reports, Detective Slay was not merely providing a “personal observation about the existence of any text messages” or explaining “what actions the detective took as part of his investigation.” The prosecutor went far beyond merely asking Detective Slay whether he had obtained Hamilton‘s and J.F.‘s phones and whether the police had analyzed them.
¶ 23 Rather, his testimony focused on the key content of the Reports — their alleged assertion that the phones did not contain
b. The Prosecutor Did Not Establish that the Reports Were Machine-Generated Without Human Input or Interpretation
¶ 24 Even if the prosecutor introduced the Reports into evidence to prove the truth of their contents, the Reports would not be hearsay if a machine generated them automatically. Such records are not hearsay because no “person” or “declarant” made a communicative “statement” within the meaning of
¶ 25 The Reports were machine-generated because
- the operator made no statements of any kind;
- the operator did not say or write the information the machine generated;
- the operator simply operated the machine;
- the machine used a common scientific and technological process;
- the conclusion of the machine-generated report was drawn solely from the machine‘s data; and
the source of the data was independent of human observation or reporting.
See Washington, 498 F.3d at 230; Adam Wolfson, Note, “Electronic Fingerprints“: Doing Away with the Conception of Computer-Generated Records as Hearsay, 104 Mich. L. Rev. 151, 159 (2005) (“[H]uman interaction often triggers the computer processes that create the records; however, the crucial factor is whether the record is a mark of computer activity or if it is thе electronically-saved statements of a human user.“).
¶ 26 A computer-generated record constitutes hearsay, however, when its creation involves human input or interpretation. See United States v. Cestnik, 36 F.3d 904, 907 (10th Cir. 1994) (concluding that money transfer records constituted hearsay because an employee created them by entering information into the computer); see also Baker v. State, 117 A.3d 676, 683 (Md. Ct. Spec. App. 2015) (concluding that call records not generated solely by the internal operations of the computer, but that likely involved a human‘s data entry, constituted hearsay); cf. Cranston v. State, 936 N.E.2d 342, 344 (Ind. Ct. App. 2010) (concluding that evidence tickets produced by a chemical breath test machine are not hearsay
4. Detective Slay‘s Testimony Was Also Hearsay
¶ 27 We next consider whether Detective Slay‘s testimony regarding the Reports was itself hearsay. Hearsay included within hearsay is inadmissible unless each part of the сombined statements conforms with an exception to the hearsay rule.
¶ 28 “For hearsay within hearsay to be admitted as evidence, a hearsay exception must apply to each link of the chain.” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 650 (10th Cir. 2008) (interpreting analogous federal rule).
¶ 29 Rather than offer the Reports themselves into evidence, the prosecutor put Detective Slay on the witness stand to tell the jury what the Reports said. He explained that “[t]he people that we have downloaded that information in our police technical unit” and that
¶ 30 Detective Slay‘s testimony about the Reports added a second layer of hearsay. See
B. The Reliability and Authenticity of the Reports
¶ 31 In addition to reviewing whether the Reports and Detective Slay‘s testimony regarding the Reports were hearsay, we also must address whether the prosecutor established their reliability and authenticity.
1. Reliability of Machine-Generated Records
¶ 33 The reliability of machine-generated records can be established “through the testimony of the operator of the machine or any other relevant evidence.” Thomas v. People, 895 P.2d 1040, 1045 (Colo. 1995); Brewer v. Motor Vehicle Div., 720 P.2d 564, 568 (Colo. 1986) (holding officer‘s testimony, coupled with proof of compliance with operational procedures established by board of health, sufficient to establish that test was properly conducted).
2. Authentication of Machine-Generated Records
¶ 35 The authentication requirement for admission of evidence is satisfied if the proponent establishes that the evidence is what the proponent claims it to be.
¶ 36 “[E]lectronic evidence may be authenticated in a number of different ways,” including through the testimony of a witness with knowledge that evidence is what it is claimed to be and through circumstantial evidence. People v. Glover, 2015 COA 16, ¶ 25, 363 P.3d 736, 741 (quoting Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012)). The proponent may authenticate electronically generated printouts through the testimony of a person with
3. The Prosecutor Did Not Establish That the Reports Were Reliable and Authentic
¶ 37 The prosecutor did not show that the Reports were reliable or authentic. See Huehn, 53 P.3d at 736; see also Washington, 498 F.3d at 231; Baker, 117 A.3d at 683. Nor did the prosecutor introduce any evidence that the police‘s machine had accurately downloaded the contents of Hamilton‘s and J.F.‘s phones or that the Reports were what the prosecutor claimed them to be. See Thomas, 895 P.2d at 1045; Glover, ¶ 12, 363 P.3d at 739.
¶ 38 Specifically, the record lacks any evidence that
- the machine used to generate the Reports produces accurate reports of the contents of phones;
- the machine was in proper working order at the time it generated the Reports;
- the person operating the machine at the time was properly qualified;
the person followed proper procedures in operating the machine; - the Reports were valid and reliable; or
- Detective Slay was qualified to interpret the Reports.
¶ 39 Without this type of evidentiary foundation, Detective Slay‘s testimony regarding the extraction of data from Hamilton‘s and J.F.‘s phones, the generation of the Reports, and his interpretation of the Reports was speculative.
¶ 40 We reject the People‘s argument that the Reports were properly authenticated based on the prosecutor‘s ipse dixit assertion that the Reports reflected the contents of Hamilton‘s and J.F.‘s phones. Counsel‘s unsupported representation to the district court did not sufficiently establish the reliability and admissibility of the Reports. See Heisler, ¶ 12, ___ P.3d at ___.
C. The Admission of Detective Slay‘s Testimony Regarding the Contents of J.F.‘s Phone Constituted Reversible Error
¶ 41 We hold that the district court erred in admitting Detective Slay‘s testimony regarding the contents of J.F.‘s phone into evidence because, as explained above,
- the Reports were inadmissible hearsay;
Detective Slay‘s testimony regarding the content of the Reports was also inadmissible hearsay; and - the prosecutor failed to prove that the Reports were reliable and authentic.
¶ 42 Because Hamilton preserved his objection to Detective Slay‘s testimony regarding J.F.‘s phone, we apply the harmless error standard in deciding whether the district court‘s admission of the testimony requires reversal. See Hagos, ¶ 12, 288 P.3d at 119.
¶ 43 We discern a reasonable possibility that the jury considered Detective Slay‘s testimony that J.F.‘s phone contained no text messages to Hamilton in deciding that J.F. had not consented to engage in sexual intercourse with him. Much of Hamilton‘s testimony concerned how J.F. had shown interest in him by texting him before and after the alleged sexual assault, in contrast to J.F.‘s testimony that “there was never a physical attraction” and that there was “nothing that would have ever made [her] want to have sex with him.”
¶ 44 If the jury had believed Hamilton‘s testimony about the text messages, it could reasonably have concluded that J.F. had shown an interest in him. This determination, in turn, could have
supported a conclusion that they had engaged in consensual sexual intercourse and, therefore, no sexual assault had occurred. Detective Slay‘s hearsay testimony directly contradictеd this key evidence and, moreover, undermined Hamilton‘s credibility.
45 Detective Slay‘s testimony was particularly prejudicial because it was part of the prosecutor‘s rebuttal case. Hamilton had no opportunity to respond to the evidence or provide an explanation as to why the police did not find any text messages from J.F. to Hamilton on J.F.‘s phone. The record also indicates that the jury gave significant weight to the evidence showing that J.F. had not texted Hamilton. Several of the jurors’ questions for Detective Slay concerned whether J.F. had texted Hamilton.
46 Therefore, we conclude there is a reasonable possibility that Detective Slay‘s testimony about the contents of J.F.‘s phone contributed to Hamilton‘s conviction of sexual assault, such that it undermines our confidence in the outcome of the case. People v. Casias, 2012 COA 117, ¶ 63, 312 P.3d 208, 220. (Because we reverse Hamilton‘s conviction based on the erroneous admission of Detective Slаy‘s hearsay testimony regarding the contents of J.F.‘s phone, we need not decide whether admission of Detective Slay‘s
47 For the above reasons, we reverse Hamilton‘s judgment of conviction for sexual assault and remand for a new trial. (Given our reversal of Hamilton‘s judgment of conviction for sexual assault based on the erroneous admission of Detective Slay‘s testimony regarding the Reports, we do not address Hamilton‘s contention that allowing the testimony also violated his rights under the Confrontation Clauses of the
III. Admissibility of Evidence of the Prior Sexual Assault Charges Against Hamilton
48 We address the remaining issues Hamilton raises on appeal, as they may arise again at the new trial.
49 Hamilton argues that the district court erred in admitting evidence of the acts underlying his two prior sexual assault charges. (Hamilton was acquitted of one of the charges and the other charge was withdrawn.) The prоsecutor argued that the evidence of the two prior sexual assault charges was admissible because such evidence had “the same or similar character to the
- identifying potential victims who were drinking with friends and had become intoxicated;
- separating them from their friends;
- taking them, without their consent, to an apartment;
- forcibly holding them down;
- sexually assaulting them; and
- Hamilton‘s DNA appearing on vaginal swabs taken from each victim.
50 The victims in the two prior incidents testified that Hamilton had followed this pattern when he sexually assaulted them. The evidence thus supports the commonality between the two prior sexual assault charges and the charges against Hamilton concerning J.F. The district court found that the evidence of the prior charges of sexual assault was admissible under
A. Standard of Review
51 We review a trial court‘s decision to admit or exclude other acts evidence for an abuse of discretion. People v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274, 276. A district court abuses its discretion when its ruling on the admissibility of other acts evidence is manifestly arbitrary, unreasonable, or unfair, or based on a misapprehension of the law. People v. Trammell, 2014 COA 34, ¶ 10, 345 P.3d 945, 947-48.
B. The Law Governing Admissibility of Other Act Evidence
52 All relevant evidence is admissible unless otherwise provided by constitution, statute, or rule.
53 Notwithstanding these limitations,
54 Recognizing the “grave statewide concern” that sexual offenses pose, the General Assembly adopted a statute to delineate clearly the
Refuting defenses, such as consent or recent fabrication; showing a сommon plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus
as part of a unified transaction to the other act; showing motive, opportunity, intent, preparation, including grooming of a victim, knowledge, identity, or absence of mistake or accident; or for any other matter for which it is relevant.
55 Before admitting other acts evidence under
a. The Other Act Evidence Must Relate to a Material Fact
56 Under the first prong of the Spoto analysis, the other acts evidence must relate to a material fact, which is a fact “of consequence to the determination of the action.” Spoto, 795 P.2d at 1318 (quoting
57 In applying the first Spoto prong, the district court found that the “prior acts relate to a material fact, primarily the consent and credibility of the alleged victim in this case.”
58 Whether J.F. consented is a material fact. While Hamilton admitted to engaging in sexual intercourse with J.F., his theory of defense was that J.F. had consented. Indeed, during closing argument, Hamilton‘s counsel argued that “just because somebody has been drinking alcohol ... [or] is intoxicated does not mean they cannot consent to the sexual activity” and also that “[y]ou can be high on drugs and consent to sex.”
59 The prosecutor proffered the other acts evidence to prove intent and to rebut Hamilton‘s consent theory by showing a common plan, scheme, design, modus operandi, and preparation. These faсtors are permissible to show a defendant‘s
60 We reject Hamilton‘s contention that modus operandi evidence is not relevant unless the identity of the assailant is at issue.
b. The Other Acts Evidence Must Be Logically Relevant
61 Under the second prong of Spoto, the evidence must be logically relevant; it must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Jones, ¶ 16, 311 P.3d at 277 (quoting
62 In reviewing the second Spoto prong, the district court found that “the evidence is logically relevant” because the two prior acts “go directly to the issue of consent and credibility of [J.F.].” The district court further found that “there are striking similarities in the other two offenses” that are relevant to whether “Hamilton was
63 The prosecutor argued that the details of the two prior sexual assault charges were part of a pattern similar to the facts involving the alleged sexual assault of J.F. The record supports this inference.
64 The evidence of the other acts has a tendency to make Hamilton‘s intent to sexually assault J.F. and J.F.‘s lack of consent more probable than it would be without the evidence. See Jones, ¶ 16, 311 P.3d at 277; Spoto, 795 P.2d at 1318. Thus, this evidence had a tendency to allow reasonable jurors to infer that Hamilton sexually assaulted J.F.
c. The Other Acts Evidence Must Create an Inference Independent of Its Reflection on the Defendant‘s Character
65 The third prong of Spoto “requires that logically relevant evidence achieve its relevance in some way other than through the impermissible inference that a person who engages in a bad act does so because he acts in conformity with his bad character.” Jones, ¶ 16, 311 P.3d at 277; Spoto, 795 P.2d at 1318. While the other acts evidence is admissible even if it would allow an
66 The district court found that the prior act evidence was “not admitted to show character, but rather, again, went to the issue of consent and credibility.” The district court further found that the evidence went to “proof of motive, intent, modus operandi, plan, [and] absence of mistake.”
67 The logical relevance of the evidence is independent of the inference that Hamilton is a person of bad character who sexually assaulted J.F. in conformity with his bad character. The evidence demonstrated a pattern of behavior in committing sexual assaults from which the jury could infer that Hamilton sexually assaulted J.F., independent of any character flaws or propensity.
68 Further, the inference that Hamilton acted in conformity with his pattern of identifying women for sexual assault does not rely on
69 We reject Hamilton‘s contention that the other acts evidence was not sufficiently similar to the charges involving J.F. to be admissible under
70 Under the fourth prong of Spoto, “we must assess whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Spoto, 795 P.2d at 1318. The district court retains a great deal of discretion in determining whether the other acts evidence is sufficiently probative for legitimate purposes. Rath, 44 P.3d at 1041. The balance required by
71 A court does not consider
72 In reviewing the fourth Spoto prong, the district court found that, although the other acts evidence is prejudicial, its “probative value is not substantially outweighed by the danger of unfair prejudice.”
73 Because J.F.‘s disputed testimony is the only direct evidence of the sexual assault, additional evidence “may have particular ‘marginal’ or ‘incremental’ probative value.” Rath, 44 P.3d at 1043. Although there were differences in the circumstances surrounding each of the alleged sexual assaults, they shared a number of significant characteristics that evidence a pattern of behavior rather than unrelated acts. The combination of the three incidents added substantial weight to the inference that Hamilton employs a technique to isolate intoxicated women for the purpose of sexually assaulting them.
74 The other acts evidence directly addressed Hamilton‘s contention that J.F. had consented to sexual intercourse with him.
75 Thus, although the other acts evidence was undoubtedly prejudicial to Hamilton, the record supports the district court‘s finding that the probative value of that evidence in proving the elements of the offense was not substantially outweighed by any danger of unfair prejudice to Hamilton.
76 Additionally, because the district court instructed the jury that it could consider the prior charges of sexual assault only for the limited purpose of “proving [Hamilton‘s] motive, intent, modus operandi, plan, absence of mistake, and the issue of consent,” it reduced the danger of unfair prejudice. See People v. Everett, 250 P.3d 649, 662 (Colo. App. 2010). Nothing in the record suggests that the jury failed to understand or apply those instructions.
2. The District Court Did Not Abuse Its Discretion in Admitting the Other Acts Evidence
77 The district court sufficiently assessed each prong of the four-part Spoto analysis in finding that the facts underlying the two prior
3. The Doctrine of Chances
78 The district court alternatively found that the evidence of the two prior charges of sexual assault was admissible under the doctrine of chances. Under the doctrine of chances, thе prosecution must establish that
(1) the evidence of other acts must be roughly similar to the charged crime; (2) the number of unusual occurrences in which the defendant has been involved must exceed the frequency rate for the general population; and (3) there must be a real dispute between the prosecution and the defense over whether the actus reus occurred.
People v. Weeks, 2015 COA 77, ¶ 29, 369 P.3d 699, 706.
79 The doctrine of chances “provides one theory of relevance under which a trial court may determine that other acts evidence satisfies the second and third prongs of the Spoto analysis.” Jones, ¶ 17, 311 P.3d at 277. However, district courts are under no obligation to analyze other acts evidence under the doctrine of chances. Id. at ¶ 22, 311 P.3d at 278. While evidence that satisfies the doctrine of chances may also satisfy elements of the Spoto analysis, a district court may admit
80 Because we conclude that the district court did not err in admitting thе other acts evidence under Spoto, we need not determine whether the evidence was also admissible under the doctrine of chances. (We also need not consider Hamilton‘s argument that the admission of evidence of the other acts of sexual assault violated his rights to due process and an impartial jury. Due process does not bar the admission of evidence under
IV. The Jury Instructions on Hamilton‘s Prior Conviction and Acquittal
81 Hamilton contends that the district court violated his right to due process by (1) adding language to the acquittal instruction
A. Standard of Review
82 We review jury instructions de novo, considering them as a whole to determine whether they accurately state the governing law. People in Interest of J.G., 2016 CO 39, ¶ 33, 370 P.3d 1151, 1161. We review a district court‘s decision to give a particular instruction for an abuse of discretion. Id. A district court “abuses its discretion where its decision to provide an instruction is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law.” Id.
83 Under the harmless error standard, reversal is required if the preserved error “substantially influenced the verdict or affected the fairness of the trial proceedings.” Tevlin, 715 P.2d at 342.
B. Preservation
84 We disagree with the People that Hamilton did not preserve his arguments regarding the “factually innocent” and conviction
85 These objections preserved the defense‘s challenge to the inclusion of the “factually innocent” and conviction language in the acquittal instruction. Therefore, we review this issue for harmless error. See Hagos, ¶ 12, 288 P.3d at 119.
C. The Inclusion of the “Factually Innocent” Language in the Acquittal Instruction
86 Hamilton contends that the district court erred by informing the jury in the acquittal instruction that it should not presume he was “factually innocent” of sexually assaulting M.D. He contends that this language trivialized the presumption of innocence.
1. The Law Governing Acquittal Instructions
87 No per se rule either requires or bars the introduction of evidence of an acquittal; rather, district courts must determine
88 Further, a district court concerned about possible juror confusion has the discretion to instruct the jury that it should not presume that the defendant was “factually innocent” solely because the jury in the prior case acquitted him. The district court can provide an instruction that the previous jury determined, for whatever reason, that the state had failed to prove the defendant‘s guilt beyond a reasonable doubt. Id. at 558.
2. The District Court Did Not Err in Adding the “Factually Innocent” Language to the Acquittal Instruction
89 The acquittal instruction stated, in relevant part:
The Defendant, Rayon Hamilton, was acquitted (or found not guilty) of sexually assaulting [M.D.]. He was convicted of kidnapping [M.D.].
You, the jurors in this case, should not necessarily presume that because Mr. Hamilton was found guilty by a previous jury that the Defendant was factually guilty but rather that a previous jury determined that the state prоved his guilt beyond a reasonable doubt. Similarly, you should not necessarily presume that because Mr. Hamilton was found not guilty of prior acts by a previous jury that the Defendant was factually innocent, but rather that the previous jury determined for whatever reason that the state failed to prove his guilt beyond a reasonable doubt.
90 The district court added the “factually innocent” language to the instruction because it was “fair that [the jury] hear that the acquittal is a burden issue and not really a factual issue.” This language mirrored the language for acquittal instructions that the supreme court approved in Kinney. See Kinney, 187 P.3d at 558.
91 We therefore hold that the district court did not abuse its discretion by adding the qualifying “factually innocent” language to the acquittal instruction.
D. The Two Jury Instructions on Hamilton‘s Prior Conviction
92 Hamilton contends that the district court erred in adding qualifying “factually innocent” language to the acquittal instruction
93 In addition to the conviction language added to the acquittal instruction quoted above, the district court provided a cautionary instruction that said, in its entirety:
The Defendant is to be tried for the crime charged in this case, and no other. You may consider the testimony of a previous conviction only in determining the credibility of the Defendant as a witness, and for no other purpose. When the Defendant testifies, his credibility is to be determined in the same manner as [that of] any other witness.
94 The People argue that the district court correctly instructed the jury on the kidnapping conviction because “[e]vidence of a prior felony conviction is admissible for purposes of affecting the credibility of the witness” and, “[i]f an acquittal is important to judge the credibility of the witness, then a conviction in the same proceeding is equally important.”
1. The Law Governing Jury Instructions Concerning Prior Convictions
95 Evidence of a prior criminаl conviction is generally inadmissible because of its highly prejudicial effect. Harper v. People, 817 P.2d 77, 85 (Colo. 1991). Such evidence casts
96 However, “[w]hen a defendant exercises his statutory privilege of testifying, all prior felony convictions and their nature may be shown to impeach his testimony.” People v. Medina, 40 Colo. App. 490, 493, 583 P.2d 293, 295 (1978) (quoting Candelaria v. People, 177 Colo. 136, 140, 493 P.2d 355, 357 (1972)).
97 The district court must advise a defendant, before he takes the witness stand, that the prosecution may respond to his testimony by disclosing his prior felony conviction to the jury. “[I]f the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility.” People v. Curtis, 681 P.2d 504, 514 (Colo. 1984).
2. The District Court Did Not Err in Providing a Cautionary Instruction on Hamilton‘s Prior Conviction for Kidnapping
99 Before Hamilton took the witness stand, the district court gave him the required advisement that, if he “were to testify and that [kidnapping] conviction is disclosed to the jury, then they would be instructed to consider the felony conviction only as it bears upon the issue of your credibility and for no other purpose.” See Curtis, 681 P.2d at 514. Hamilton confirmed he understood the advisement and chose to testify anyway. Thus, the prosecutor was permitted to introduce evidence of the kidnapping conviction to
100 During Hamilton‘s testimony, defense counsel elicited evidence that Hamilton was “found not guilty of sexual[ly] assaulting [M.D.],” but that he was “found guilty of kidnapping [her].” The prosecutor made no reference to the kidnapping conviction during cross-examination. We agree with the People that the jury could consider Hamilton‘s kidnapping conviction in weighing his credibility. See id.
3. The District Court Erred in Adding a Reference to Hamilton‘s Prior Conviction to the Acquittal Instruction
101 We next turn to whether the district court erred in adding language regarding the kidnapping conviction to the acquittal instruction. The district court‘s conviction language mirrored the acquittal language in the same instruction, but with “guilty” substituted for “not guilty of prior acts,” and “innocent” and “proved his guilt” substituted for “failed to prove his guilt.” (The conviction language did not include the “for whatever reason” language that appears in the acquittal language of the instruction.) Therefore, the
102 We hold that the district court erred in adding the conviction language to the acquittal instruction, for four reasons.
103 First, the instruction went beyond the purpose of the сautionary conviction instruction discussed in Chavez. It did more than explain to the jury that the evidence of Hamilton‘s prior conviction was admitted for the limited purpose of impeaching his credibility. See Chavez, 853 P.2d at 1152. The conviction language added to the acquittal instruction made no reference to credibility.
104 Second, although the instruction gave the jury no more information about the prior conviction than it had obtained through Hamilton‘s testimony, the language in the instruction, coupled with the language of the stand alone instruction on the conviction, unnecessarily highlighted Hamilton‘s prior conviction. The People have provided no authority, nor can we find any, for the proposition that a district court may provide the jury with two or more instructions addressing a defendant‘s prior conviction.
105 Third, the addition of the conviction language to the acquittal instruction defeated the limited purpose of the acquittal instruction
106 Lastly, the conviction language added to the acquittal instruction was confusing and illogical. It told the jury that Hamilton may have been convicted of kidnapping M.D. even though he was not “factually guilty” of the crime, because the previous jury determined that the state had proved his guilt beyond a reasonable doubt. Although the distriсt court surely did not intend to suggest that the earlier conviction was a miscarriage of justice, the jurors may have questioned how a jury could convict a defendant of an offense of which the defendant was not “factually guilty.” Further, a
107 Thus, we conclude that the district court erred in adding the conviction language to the acquittal instruction. Because we reverse the judgment of conviction on other grounds, we need not determine whether the error was harmless.
V. Hamilton‘s Right to Due Process
108 Finally, Hamilton contends that the district court violated his right to due process by allowing the prosecutor to present evidence of other acts for which he was tried and acquitted, and in instructing the jury on his prior conviction.
109 Because we resolve these issues in Hamilton‘s favor on non-constitutional grounds, we need not address his due process argument. People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1251 (Colo. 2003).
VI. Conclusion
110 We reverse the judgment of conviction for sexual assault and remand for a new trial.
JUDGE ROMÁN and JUDGE J. JONES concur.