v. Hamilton , 2019 COA 101 ( 2019 )

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 party 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.
COLORADO COURT OF APPEALS 2019COA101
Court of Appeals No. 16CA1468
City and County of Denver District Court No. 13CR3362
Honorable Michael J. Vallejos, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rayon D. Hamilton,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
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
¶1 Defendant, Rayon D. Hamilton, appeals his conviction for
sexual assault. J.F., the victim, accused Hamilton of drugging her
at a bar, separating her from her friends, taking her to an
apartment without her consent while she was unconscious, and
sexually assaulting her.
¶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
Hamilton 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.
1
Background
¶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.
2
Admissibility of Detective Slay’s Testimony Concerning the
Phone Reports
¶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 CRE 803(7) and 803(10) and his rights under the
Confrontation Clauses of the United States and Colorado
Constitutions. He argues that Detective Slay’s testimony unfairly
prejudiced him because it contradicted his own testimony that J.F.
3
had texted him both the night of the alleged sexual assault and the
next morning.
¶ 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
testimony 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.
4
People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Such an error is
harmless where “there is no reasonable possibility that it
contributed to the defendant’s conviction.” Pernell v. People, 2018
CO 13, ¶ 22, 411 P.3d 669, 673; People v. Cohen, 2019 COA 38,
¶ 11, ___ P.3d ___, ___. Under this standard, reversal is required
only if the error “substantially influenced the verdict or affected the
fairness of the trial proceedings.” Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986).
¶ 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 so 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.
5
¶ 16 First, during Detective Slay’s cross-examination, defense
counsel asked, “Detective, he just asked you a question about texts
on [J.F.’s] phone” and “[w]ere you testifying by your personal
knowledge or some report that was given to you that you read?”
After Detective Slay responded that his testimony was based on “[a]
report from that phone being downloaded,” defense counsel
“move[d] to strike that testimony as the foundation is hearsay.”
Defense counsel argued that the prosecutor could have “[laid] the
foundation to admit the text messages from [J.F.’s] phone, but they
chose not to. Now they are trying to . . . admit hearsay statements
from the detective about a report that he read.” But defense
counsel’s objection concerned Detective Slay’s testimony regarding
the contents of J.F.’s phone and not the contents of Hamilton’s
phone.
¶ 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?”
6
Defense counsel objected to the questions, stating, “[w]ere there
texts on [J.F.’s] phone to [Hamilton]? I object. That’s the same
objection I made the last time.” Like the earlier objection, this
objection addressed evidence of the contents of J.F.’s phone.
¶ 18 We therefore conclude that Hamilton did not 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.” CRE 801(c). Hearsay is
inadmissible except as provided by the Colorado Rules of Evidence
or other applicable statutes or rules. CRE 802; People v. Buckner,
228 P.3d 245, 249 (Colo. App. 2009).
¶ 20 A declarant is “a person who makes a statement.” CRE
801(b). A “statement” is either “(1) an oral or written assertion or
7
(2) nonverbal conduct of a person, if it is intended by him to be
communicative.” CRE 801(a).
¶ 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
8
the text messages from J.F. to Hamilton about which Hamilton had
testified. The prosecutor specifically asked Detective Slay whether
the Reports showed that J.F. had texted Hamilton on the relevant
days. This question elicited testimony regarding the truth of the
matters asserted in the Reports.
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 CRE 801. Buckner, 228 P.3d at
250. As a division of this court noted in Buckner, this reasoning is
in accord with decisions from other jurisdictions applying
substantially similar hearsay rules. Id. (citing United States v.
Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005)); see United
States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007) (concluding
that only a person can make a statement and nothing “said” by a
machine is hearsay); Hamilton, 413 F.3d at 1142-43 (holding
information automatically generated by a computer was not hearsay
9
because there was no “declarant” or “statement” involved); United
States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (deciding that
an automatically generated time stamp was not hearsay because it
was not uttered by a person). See generally People v. Marciano,
2014 COA 92M-2, ¶ 28, 411 P.3d 831, 838 (in deciding cases
involving the Colorado Rules of Evidence, we consider instructive
cases from other jurisdictions interpreting analogous rules).
¶ 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
10
• 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 the 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
11
because they do not involve any material human intervention). For
these reasons, we hold that the district court erred in determining
that the Reports were 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 combined statements conforms
with an exception to the hearsay rule. CRE 805. “Where a
statement contains multiple layers of potential hearsay, the court
must analyze each layer separately to determine whether it falls
within a recognized hearsay exception or exclusion.” People v.
Phillips, 2012 COA 176, ¶ 101, 315 P.3d 136, 160.
¶ 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
12
he was characterizing “[a] report from that phone being
downloaded.”
¶ 30 Detective Slay’s testimony about the Reports added a second
layer of hearsay. See CRE 805. His testimony was hearsay because
he described to the jury the content of the Reports to prove the
truth of their content. See CRE 801(c). For this reason, absent the
application of a hearsay exception, Detective Slay could not have
testified about the contents of the Reports, even if the Reports
themselves were admissible. See People v. Raffaelli, 701 P.2d 881,
884 (Colo. App. 1985) (holding that detective’s or caseworker’s
testimony regarding the content of a doctor’s report was
inadmissible hearsay under CRE 802 and CRE 805). But the
People do not argue that any hearsay exception applies, and the
application of any such exception is not otherwise apparent to us.
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.
13
¶ 32 An analysis of the admissibility of a machine-generated record
must consider the reliability and accuracy of the process used to
create and obtain the underlying data, and whether the report is
authentic. See People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2002)
(explaining that the rules of relevancy, authentication, and hearsay
govern admissibility of a computer printout); see also Washington,
498 F.3d at 231 (“Any concerns about the reliability of . . . machine-
generated information is addressed through the process of
authentication not by hearsay . . . .”); Baker, 117 A.3d at 683
(concluding that the admissibility of records that are entirely self-
generated should be determined on the basis of the reliability and
accuracy of the process used to create and obtain the data).
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).
14
¶ 34 The proponent of the admissibility of computer-generated
evidence must lay a sufficient foundation to establish that the
machine’s results are valid and reliable, the machine was in proper
working order at the time it generated the report, and the operator
was qualified to operate it. See Thomas, 895 P.2d at 1045; see also
People v. Bowers, 716 P.2d 471, 474 (Colo. 1986) (holding that the
prosecution must lay a proper foundation for the admission of
breath test results into evidence).
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. CRE 901(a); People v. Heisler, 2017 COA
58, ¶ 7, ___ P.3d ___, ___; Huehn, 53 P.3d at 736.
¶ 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
15
personal knowledge of how the printouts were generated and that
they are what they are claimed to be. See Heisler, ¶ 12, ___ P.3d at
___; Glover, ¶ 24, 363 P.3d at 741; People v. Bernard, 2013 COA 79,
¶ 10, 305 P.3d 433, 435.
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;
16
• 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;
17
• 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
18
supported a conclusion that they had engaged in consensual sexual
intercourse and, therefore, no sexual assault had occurred.
Detective Slay’s hearsay testimony directly contradicted 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 Slay’s hearsay testimony regarding the contents of J.F.’s
phone, we need not decide whether admission of Detective Slay’s
19
testimony regarding the contents of Hamilton’s phone was plain
error.)
¶ 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 United States and Colorado
Constitutions.)
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 prosecutor argued that the
evidence of the two prior sexual assault charges was admissible
because such evidence had “the same or similar character to the
20
sexual assault perpetrated against [J.F.]” and revealed a common
pattern:
• 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 CRE 404(b),
applying the four-part test delineated in People v. Spoto, 795 P.2d
1314, 1318 (Colo. 1990), as well as under the doctrine of chances,
because it was relevant to the issue of consent and Hamilton’s
credibility. Hamilton’s counsel had argued that the evidence of the
21
two prior sexual assault charges was inadmissible because it
differed significantly from the allegations underlying the charges
involving J.F. He makes the same argument on appeal. We are not
persuaded.
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. CRE 402. Relevant evidence is
that evidence “having 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.”
CRE 401. Relevant evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.” CRE
22
403. Relevant evidence is not admissible to prove the character of a
person by showing that he acted in conformity with that character
on a particular occasion. CRE 404(b).
¶ 53 Notwithstanding these limitations, CRE 404(b) allows
admission of evidence of a defendant’s other crimes, wrongs, or acts
to prove, for example, motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. CRE
404(b); Jones, ¶ 12, 311 P.3d at 276.
¶ 54 Recognizing the “grave statewide concern” that sexual offenses
pose, the General Assembly adopted a statute to delineate clearly
the CRE 404(b) admissibility requirements for other acts evidence
in prosecutions for sexual crimes. Jones, ¶ 13, 311 P.3d at 277
(quoting § 16-10-301(1), C.R.S. 2018). In a sexual offense case,
“[t]he prosecution may introduce evidence of other acts of the
defendant to prove the commission of the offense as charged for any
purpose other than propensity.” § 16-10-301(3). Such purposes
include the following:
Refuting defenses, such as consent or recent
fabrication; showing a common plan, scheme,
design, or modus operandi, regardless of
whether identity is at issue and regardless of
whether the charged offense has a close nexus
23
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.
Id.
¶ 55 Before admitting other acts evidence under CRE 404(b) and
section 16-10-301(3), a trial court must be satisfied, by a
preponderance of the evidence, that the prior act occurred, and
must consider the admissibility of the evidence under the four-
prong Spoto analysis. Jones, ¶ 14, 311 P.3d at 277; Kinney v.
People, 187 P.3d 548, 554 (Colo. 2008). Other acts evidence is
admissible only if (1) it relates to a material fact in the case; (2) the
evidence is logically relevant; (3) the logical relevance of the
evidence is independent of the intermediate inference prohibited by
CRE 404(b) that the defendant has a bad character; and (4) the
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice. Spoto, 795 P.2d at 1318.
24
1. Application of Spoto
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 CRE 401).
¶ 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 factors are permissible to show a defendant’s
25
intent and to refute a consent defense. See People v. Martinez, 36
P.3d 154, 159 (Colo. App. 2001).
¶ 60 We reject Hamilton’s contention that modus operandi evidence
is not relevant unless the identity of the assailant is at issue.
Section 16-10-301(3) specifically provides that the prosecution may
introduce evidence of other acts to show “modus operandi,
regardless of whether identity is at issue.” § 16-10-301(3).
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 CRE 401); accord
Spoto, 795 P.2d at 1318.
¶ 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
26
acting with or without consent or whether he was sexually
assaulting this individual.”
¶ 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
27
impermissible character inference, the proffered evidence must be
logically relevant independent of that inference. Jones, ¶ 16, 311
P.3d at 277. “Plan, scheme, design, modus operandi, and motive
. . . are well-accepted methods of proving the ultimate facts
necessary to establish the commission of a crime, without reliance
upon an impermissible inference from bad character.” People v.
Rath, 44 P.3d 1033, 1040 (Colo. 2002).
¶ 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
28
his character. Rather, it rests on the facts common to the other
acts and his alleged sexual assault of J.F.: targeting intoxicated
women, separating them from their friends, taking them to an
apartment against their will, and sexually assaulting them. This is
modus operandi evidence, which allows for proof of the ultimate
facts in a criminal case without relying on an inference of bad
character. See id. at 1041.
¶ 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 section 16-10-301(3). Evidence of other acts may
be introduced in sexual assault cases to show common plan or
modus operandi regardless of whether the charged offense has a
close nexus as part of a unified transaction involving the other acts.
See § 16-10-301(3). Consistent with Spoto, the district court
reviewed the underlying allegations in all three instances and found
that there were “striking similarities in the other two offenses.” The
record supports the district court’s finding.
29
d. The Risk of Unfair Prejudice Must Not Substantially Outweigh
the Probative Value of the Other Acts Evidence
¶ 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 CRE 403 favors
admission of the evidence. Therefore, a reviewing court must afford
the evidence the maximum probative value attributable by a
reasonable fact finder and the minimum unfair prejudice to be
reasonably expected. Id. at 1043.
¶ 71 A court does not consider Rule 403’s “probative value” in
isolation but evaluates the “marginal” or “incremental” probative
value of the evidence relative to the other evidence in the case. Id.
Thus, the court must weigh “the logical force of the evidence and
the proponent’s need for the evidence” in light of other available
evidence. Id. (quoting Martin v. People, 738 P.2d 789, 794 (Colo.
1987)). Evidence of other acts is “typically relevant and highly
probative” and should therefore be more readily available in sexual
30
assault cases than in other types of criminal proceedings. People v.
Villa, 240 P.3d 343, 350 (Colo. App. 2009) (quoting § 16-10-301(1)).
Generally, “the probative value of such evidence will outweigh any
danger of unfair prejudice.” Id. at 352 (quoting § 16-10-301(1)).
¶ 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.
31
It added substantial weight to the prosecutor’s proof that J.F. was a
credible witness and that she did not consent to engage in sex with
Hamilton. Other acts evidence is admissible to corroborate a
victim’s testimony of the existence of a fact. See id.
¶ 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
32
charges of sexual assault were admissible as other acts evidence.
We hold that the district court’s application of the four-prong
analysis was not “manifestly arbitrary, unreasonable or unfair,”
and, therefore, that the district court did not abuse its discretion in
admitting the other acts evidence under CRE 404(b) and section 16-
10-301(3). Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).
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, the
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,
33
¶ 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 CRE 404(b) evidence under
Spoto without also determining whether the evidence is admissible
under the doctrine of chances. Id. at ¶ 9, 311 P.3d at 276.
¶ 80 Because we conclude that the district court did not err in
admitting the 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 CRE
404(b). See Dowling v. United States, 493 U.S. 342, 352-53 (1990);
People v. Conley, 804 P.2d 240, 244 (Colo. App. 1990).)
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
34
telling the jury it should not presume he was “factually innocent” of
sexually assaulting M.D. (a victim in one of the two prior sexual
assault cases), even though he had been acquitted on the sexual
assault charge; and (2) informing the jurors in the acquittal
instruction that he had been convicted of kidnapping M.D.
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
35
language added to the acquittal instruction. The defense objected
to the prosecutor’s proposed acquittal instruction “[j]ust in its
entirety, telling the jury to presume or not to presume different
things.” Defense counsel further said, “I don’t know that us
opening the door and telling the jury that he was found not guilty of
the sex assault . . . necessarily opens the door to the jury being
informed that he was found guilty of felony kidnapping . . . .”
¶ 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
36
whether to admit such evidence on a case-by-case basis. Kinney,
187 P.3d at 557. An acquittal instruction is appropriate where the
jury learns that the defendant was tried in another criminal case
and may be speculating as to the outcome of that trial. Id. Under
these circumstances, the probative value of a prior acquittal is
significant. Id. A district court may allow evidence of the acquittal
for the limited purpose of ensuring the jury does not give improper
weight to the acts underlying the criminal charge in the prior case.
Id.
¶ 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:
37
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 proved 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
38
and in adding a reference to Hamilton’s prior kidnapping conviction
to the instruction addressing Hamilton’s prior acquittal of sexual
assault.
¶ 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 criminal conviction is generally
inadmissible because of its highly prejudicial effect. Harper v.
39
People, 817 P.2d 77, 85 (Colo. 1991). Such evidence casts
“damning innuendo likely to beget prejudice in the minds of juries.”
People v. Lucero, 200 Colo. 335, 343, 615 P.2d 660, 665 (1980)
(quoting Stull v. People, 140 Colo. 278, 284, 344 P.2d 455, 458
(1959)). Thus, the disclosure of a defendant’s prior felony
conviction to a jury will so burden the trial “with the baggage of his
prior criminality that a fair trial as we know it bec[o]me[s] an
impossibility.” Id. at 344, 615 P.2d at 666.
¶ 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).
40
¶ 98 In the limited circumstances where prior convictions are
admissible, “stringent standards apply and cautionary instructions
must accompany the introduction of such prior convictions.”
Harper, 817 P.2d at 85. The cautionary instructions can alleviate
the danger that a jury will misuse evidence of the defendant’s prior
conviction to find him guilty. People v. Chavez, 853 P.2d 1149,
1152 (Colo. 1993) (stating that a defendant is “entitled to an
instruction explaining to the jury that evidence of his prior felonies
was admitted only for the limited purpose of impeaching his
credibility”).
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
41
impeach Hamilton’s credibility. See People v. Chavez, 621 P.2d
1362, 1366 (Colo. 1981).
¶ 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
42
jury received two instructions reminding it of Hamilton’s prior
conviction.
¶ 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
cautionary 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
43
— to ensure the jury did not give improper weight to the other acts
evidence presented at trial and did not speculate whether Hamilton
had been convicted on a charge for which he had been acquitted.
See Kinney, 187 P.3d at 557. The reasons for providing an
acquittal instruction do not give a district court license to inform
the jurors in the same instruction that the defendant was convicted
of a different offense in the same case. We therefore disagree with
the People that, because the district court gave an instruction on
Hamilton’s acquittal for sexually assaulting M.D., that instruction
needed to refer to Hamilton’s conviction in the same case for
kidnapping her.
¶ 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 district 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
44
literal reading of the instruction suggested that the jury could
convict Hamilton even if he was not “factually guilty” of sexually
assaulting J.F.
¶ 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.
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).
Conclusion
¶ 110 We reverse the judgment of conviction for sexual assault and
remand for a new trial.
JUDGE ROMÁN and JUDGE J. JONES concur.
45