22CA0003 Peo v Everett 09-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0003 City and County of Denver District Court No. 19CR1628 Honorable Adam J. Espinosa, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James L. Everett,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Michael C. Mattis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, James L. Everett, appeals the judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault on a child. Everett contends that the district court erred by
(1) failing to give the jury a statutorily required cautionary
instruction concerning child hearsay; (2) improperly admitting
evidence of an injury sustained by the victim; and (3) erroneously
admitting prior act evidence and providing the jury with confusing
instructions concerning that evidence. He also contends that the
prosecution committed misconduct and that the alleged errors
cumulatively deprived him of a fair trial. Because we conclude that
the court’s failure to give the child hearsay cautionary instruction
amounted to plain error under controlling supreme court precedent,
we reverse Everett’s conviction and remand for a new trial.
I. Background
¶2 In February 2019, C.B. disclosed to her father that Everett,
her older stepbrother, had sexually abused her repeatedly for years.
The disclosure came after C.B.’s father had confronted her about
her interactions with boys and her inappropriate social media use,
the two had discussed some of the “very hard things . . . that can
happen [to] a young lady,” and the father had reassured C.B. that
1 she could tell him anything. C.B. first provided some details of the
abuse in a letter to her father and later filed a police report.
Following the initial report, forensic interviewer Dolce Solis
interviewed C.B., and sexual assault nurse examiner Sarah Eckhart
examined C.B. (SANE exam).
¶3 Most of the abuse occurred when Everett was a minor, and
Everett was prosecuted separately for those acts in a juvenile
delinquency case. But the single instance of sexual assault charged
in this case was alleged to have occurred sometime between
December 1, 2018, and January 31, 2019, when Everett was twenty
years old and C.B. was thirteen.
¶4 Before trial, the prosecution filed a notice of intent to
introduce child hearsay statements under section 13-25-129,
C.R.S. 2025. After an evidentiary hearing, the district court
determined that the child hearsay evidence was admissible.
¶5 A four-day jury trial began in October 2021. Although C.B.
testified, the bulk of her relatively short testimony focused on the
acts of sexual abuse that had occurred from the time she was in
“elementary school going into middle school.” She said it happened
“way more than [forty]” times. As for the single instance of charged
2 conduct, C.B. testified only that it had occurred “around
Christmas” or “between” Christmas and New Year’s Day. When
asked for details of the charged conduct, C.B. responded, “I don’t
remember the last time. It’s not in my brain. And if it is, it’s locked
in a box.”
¶6 The prosecution also presented the following witnesses and
exhibits, which relayed C.B.’s hearsay statements to the jury:
• C.B.’s father testified about C.B. disclosing the abuse to
him and the letter she drafted about it. During the father’s
testimony, the prosecutor introduced the letter, the court
admitted it into evidence, and the prosecutor read it aloud
to the jury. In the letter, C.B. said Everett “would molest
[her] nearly every night” and that the abuse “was ongoing
until the end of last year.” She wrote that “[t]he reason why
[she has] had so many social media issues is because [she]
is trying not to think about it.” She said she thought about
killing herself and killing Everett and slept with a knife for
protection. After her father asked her to explain what she
meant by “molest,” C.B. added the following to her letter:
“He would force my pant[s] and panties off [and] put his
3 privates on mine and hump until he got to a point where he
was going to nut and then leave.” C.B. provided no specific
details regarding the charged conduct.
• C.B.’s grandmother testified that she read the letter C.B.
wrote and asked C.B. whether it was true. C.B. said,
“[Y]es.” The grandmother also testified to C.B.’s statements
about how long the abuse occurred, why she had not
reported it before, and that she wanted to “press charges”
against Everett.
• Officer Timasha Haliburton testified about C.B.’s initial
police report in late February 2019. During Officer
Haliburton’s testimony, the court admitted the police report
and the prosecutor read it aloud to the jury. In the police
report, C.B. said that Everett sexually assaulted her “nearly
every night . . . for years” and provided details of how the
assaults would occur that were like those included in her
letter to her father. She said that “[t]he last time he did [it]
was when [she] moved to a bigger apartment” but provided
no other details regarding the charged conduct.
4 • Dulce Solis, who was qualified as an expert in child forensic
interviewing, testified about the forensic interview she
conducted the day after C.B. made her initial police report.
During the hour-long interview presented in full to the jury,
C.B. recounted the history of the assaults. She told Solis
that, starting when she was nine years old and in fourth
grade, Everett would come into her room “every night” he
stayed at her mother’s house, pull down her pants and
panties, put his privates “on but not in” her privates, and
“hump” her from behind. In response to Solis’ questions,
C.B. described the first time Everett assaulted her in detail.
She said that the abuse stopped when the family moved to a
new apartment but that the last time it happened was at
that apartment when Everett “came back to visit” “between
Christmas and New Year’s” in 2018. That time, Everett
crawled into C.B.’s bed and got under the covers behind
her, but she sat up and said, “No.” Everett left and came
back multiple times but eventually rolled C.B. away from
him, pulled down her shorts and underwear, and “started
doing the same thing” on the “outside” of her privates while
5 grabbing her breasts. The prosecutor also admitted Solis’
notes from the interview, including diagrams she made with
C.B.’s input.
• Detective Marika Lawrenson, who was assigned to
investigate the case and observed C.B.’s forensic interview,
testified that C.B. identified Everett as the person “she had
been talking about earlier in the forensic interview.”
• Sarah Eckhart, a pediatric nurse practitioner who was
qualified as an expert in sexual assault nurse examination,
testified about statements C.B. made during her SANE
exam in March 2019. C.B. told Eckhart that she was being
examined because she had “been touched inappropriately
by a family member” and identified Everett as the
perpetrator. C.B. said that the abuse began when she was
in fourth or fifth grade, that Everett touched her vagina with
his penis, and that she experienced pain but not bleeding.
When Eckhart asked C.B. when was the last time it
happened, C.B. said, “[E]ither December or January,” three
months prior.
6 • C.B.’s mother testified that C.B. told her about the abuse in
March 2019. C.B. said, “[F]or the last five years, [Everett]
has been molesting me.” C.B.’s mother then repeated the
details C.B. shared with her about the assaults. As to the
charged offense, C.B. said Everett was “drinking beer” and
came in, “she tried to fight him off,” and “it hurt,” which the
mother said she understood to mean that Everett
penetrated C.B.
¶7 The district court did not provide the jury with a child hearsay
cautionary instruction. The jury found Everett guilty of the single
charged count of sexual assault on a child, and the court sentenced
him to eight years to life in the custody of the Department of
Corrections.
II. Child Hearsay Cautionary Instruction
¶8 Everett contends that the district court’s failure to instruct the
jury as required by the child hearsay statute, section 13-25-129(6),
constitutes plain error and requires the reversal of his conviction.
Under controlling supreme court precedent, we agree.
7 A. Applicable Law
¶9 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). Generally, hearsay
statements are presumptively inadmissible at trial, absent a
relevant court rule or statute. CRE 802.
¶ 10 Section 13-25-129 provides one such exception to the general
hearsay rule for out-of-court statements made by a child victim of
an unlawful sexual behavior offense.1 While the statute authorizes
the admission of certain child hearsay statements, it also requires
that certain procedures be followed when admitting such
statements, including that the trial court provide a cautionary jury
instruction:
1 As relevant, section 13-25-129(2), C.R.S. 2025, provides that an
out-of-court statement made by a child (as defined under the statutes that are the subject of the action — here, a person less than fifteen years of age, § 18-3-405(1), C.R.S. 2025) describing all or part of an offense of unlawful sexual behavior as defined by section 16-22-102(9), C.R.S. 2025, is admissible in any criminal, delinquency, or civil proceeding if the child either testifies or is unavailable and there is corroborative evidence. The statute also requires that the trial court conduct a pretrial hearing to determine that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. § 13-25-129(5)(a).
8 If a statement is admitted pursuant to this section, the court shall instruct the jury in the final written instructions that during the proceeding the jury heard evidence repeating a child’s out-of-court statement and that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, the jury shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
§ 13-25-129(6).
¶ 11 The “admission of a child’s out-of-court statements through
the testimony of other witnesses creates a danger that a defendant’s
rights may be prejudiced.” People v. McClure, 779 P.2d 864, 866
(Colo. 1989). But, particularly in sexual assault cases, the
“admission of the child’s hearsay statements may be necessary for
the prosecution to prove its case.” Id. Recognizing this tension, the
legislature “struck a balance between the necessity of proof on the
part of the prosecution and the danger of unfair prejudice to the
defendant.” Id.
¶ 12 The statute’s procedural requirements “are designed to
safeguard those rights of the defendant which are implicated when
a hearsay statement is permitted into evidence” — namely, the
9 “defendant’s right of confrontation and his due process right to a
fair trial.” Id. To achieve that end, the instruction “directs the jury
to use special care in evaluating the credibility of the child who
made the statement and the circumstances under which the
statement was made.” Id. Failure to instruct the jury with the
required cautionary instruction in the final charge is error. See id.2
B. The District Court’s Failure to Give the Child Hearsay Cautionary Instruction Was Obvious Error
¶ 13 The district court did not provide the jury with a cautionary
instruction on the nature of child hearsay statements as required
by section 13-25-129(6). See COLJI-Crim. D:12 (2024). Everett
contends, the People concede, and we agree that the court erred by
failing to give the child hearsay cautionary instruction. See
McClure, 779 P.2d at 866; see also People v. Paglione, 2014 COA 54,
2 In People v. McClure, the supreme court determined that section
13-25-129, C.R.S. 1987, required a trial court to “give the cautionary instruction contemporaneously with the admission of this particular type of evidence, and again in the court’s general charge to the jury at the conclusion of the case.” 779 P.2d 864, 866 (Colo. 1989). The statute has since been amended and now requires only that the instruction be provided in the “final written instructions.” Ch. 150, sec. 1, § 13-25-129(2), 1993 Colo. Sess. Laws 515; see People v. Burgess, 946 P.2d 565, 568 (Colo. App. 1997).
10 ¶ 45 (trial courts have “a duty to correctly instruct the jury on the
law applicable to the case,” and we review de novo the instructions
as a whole to determine whether they accurately informed the jury).
¶ 14 But defense counsel did not request the instruction and did
not object to the court’s failure to give it at trial. Consequently, we
will only reverse Everett’s conviction if the error was plain. See
Hagos v. People, 2012 CO 63, ¶ 14 (we review all errors that were
not preserved by objection for plain error). Plain error is error that
is both obvious and substantial. Id.
¶ 15 An error is obvious if the act or omission challenged on appeal
contravenes a clear statutory command, a well-settled legal
principle, or Colorado case law. People v. Walker, 2022 COA 15,
¶ 68. Because section 13-25-129(6) requires a child hearsay
cautionary instruction, Everett contends, the People concede, and
again we agree that the error was obvious. See Walker, ¶ 68.
¶ 16 Thus, the narrow question before us is whether the error was
substantial — that is, whether it so undermined the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the judgment of conviction. Hagos, ¶ 14. We turn to that
question next.
11 C. The District Court’s Failure to Give the Child Hearsay Cautionary Instruction Was Substantial
¶ 17 Everett contends that the district court’s failure to give the
jury the child hearsay cautionary instruction was a substantial
error because the entirety of the evidence supporting the charged
allegations was child hearsay, the prosecution used child hearsay to
expand the timeframe of the allegations beyond what had been
charged in the original information, and the child hearsay witnesses
bolstered C.B.’s credibility “in a close case where the result rested
on her credibility.” We agree with Everett that the error requires
reversal under McClure, which is binding on us. See People v.
Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010).
¶ 18 Everett was charged with sexual assault on a child under
section 18-3-405, C.R.S. 2025. Specifically, the People alleged that
“between and including approximately December 1, 2018, and
January 31, 2019, [Everett] unlawfully, feloniously, and knowingly
subjected [C.B.], not his spouse, to sexual contact and the victim
was less than fifteen years of age and the defendant was at least
four years older than the victim.” The People also alleged that
Everett “applied force against the victim in order to accomplish or
12 facilitate the sexual contact,” a sentence enhancer that made the
crime a class 3 felony. See § 18-3-405(2)(a).
¶ 19 C.B.’s trial testimony focused on the assaults Everett
committed against her when he was a juvenile, for which Everett
faced charges in a separate case. Regarding the charged assault,
C.B. testified only that it occurred sometime between Christmas
and New Year’s Day. She could not remember any other details. As
a result, the prosecution could not meet its burden of proof based
on C.B.’s testimony alone. There were no eyewitnesses and no
physical evidence of the crime.
¶ 20 In fact, the only evidence of the single instance of charged
conduct and the associated sentence enhancer came in the form of
child hearsay, admitted through seven witnesses (including two
experts3 and two police officers), two documents written by C.B.,
and the video of C.B.’s forensic interview. See Chirinos-Raudales v.
People, 2023 CO 33, ¶¶ 12, 16 (considering the admissibility of a
forensic interview under the child hearsay statute). Notably, the
3 We acknowledge that Solis did not testify to any statements C.B.
made; rather, the hearsay that was admitted during Solis’ examination was the recording of C.B.’s forensic interview.
13 hearsay witnesses and exhibits not only established the elements of
the charged offense and sentence enhancer, but they also relayed
C.B.’s account of years of sexual assaults perpetrated by Everett,
which were admitted under CRE 404(b).
¶ 21 The prosecution also relied on child hearsay to expand the
timeframe for the charged conduct and to counter defense evidence
that Everett was in Florida from November 9, 2018, until January
3, 2019. The initial complaint charged that the unlawful sexual act
occurred sometime between “December 1, 2018, and December 31,
2018.” Later, after Eckhart testified during a motions hearing that
C.B. told her that the “last incident happened sometime in
December or January,” the People moved to amend the count to
expand the timeframe to include January 31, 2019.
¶ 22 At trial, C.B. testified that the assault occurred between
December 25, 2018, and January 1, 2019, a time when Everett was
in Florida, according to his evidence. The next day, Eckhart
testified that C.B. told her the abuse occurred in “either December
or January.” The child hearsay Eckhart relayed permitted the
prosecution to argue that Everett sexually abused C.B. after he
14 returned to Colorado on January 3, 2019, even though that
argument was inconsistent with C.B.’s account.
¶ 23 In arguing that the error here entitles him to a new trial,
Everett relies on McClure. In that case, several witnesses testified to
hearsay statements made by the child sexual assault victim, but
the trial court did not provide the jury with the cautionary
instruction required by section 13-25-129. McClure, 779 P.2d at
865. The supreme court held that the trial court’s failure to
instruct the jury was error. Id. at 866. Because the defendant
failed to request the instruction and failed to object to its omission,
the supreme court considered whether the error required reversal
under the plain error standard of review. Id. at 866-67.
¶ 24 In concluding that reversal was required, the supreme court
explained that five witnesses “testified extensively as to the details
of the sexual assault” and “corroborated the substance of the other
witnesses’ testimony.” Id. at 867. Of the five witnesses, two were
qualified as experts and a third was a police officer with “extensive
experience in child sexual assault.” Id. The supreme court warned
that “when an expert witness testifies as to a hearsay statement,
there is a danger that the jury will accept the statement as true,
15 without critically evaluating the credibility of the source of the
statement.” Id. at 866. The supreme court also explained that,
“[w]ith five witnesses reinforcing [the victim’s] testimony concerning
the details of the sexual assault, the child’s credibility may very well
have been bolstered in the eyes of the jury.” Id. at 867.
¶ 25 “In view of the number of witnesses, their credentials, and the
content of their testimony,”4 the supreme court could not “say that
the trial court’s failure to give the cautionary instruction to the jury
did not prejudice the defendant’s rights to a fair trial.” Id. The
supreme court reversed the judgment of conviction and remanded
the case for a new trial. Id.
¶ 26 Comparing the facts in this case to those in McClure compels
us to conclude that the error warrants reversal. Here, the
prosecution elicited child hearsay through seven witnesses, two
documents, and a video — more witnesses and exhibits than were
admitted in McClure. See id. Like McClure, two of the witnesses
4 The supreme court did not explain what the victim testified to or
what details the other witnesses shared about the sexual assaults, so we are not able to compare the content of the child hearsay admitted in that case to what was admitted in this case.
16 were qualified as experts and two others were affiliated with law
enforcement. See id. at 866-67.
¶ 27 In McClure, the child hearsay served to corroborate the
victim’s in-court testimony and bolster her credibility. Id. at 867.
Here, the child hearsay corroborated C.B.’s testimony about the
prior assaults, thereby bolstering her credibility. But it also served
as a complete substitute for C.B.’s testimony regarding the charged
assault given C.B.’s inability to recall the details. Although the
prosecution is certainly entitled to, and sometimes must, prove its
case through child hearsay, see id. at 866, such a strategy makes it
even more important that the court properly instruct the jury as
mandated by statute.
¶ 28 We are not ultimately persuaded by the People’s argument
that People v. Wood, 743 P.2d 422 (Colo. 1987), compels a different
conclusion. The controversy in Wood centered around the
testimony of a single witness — the victim’s schoolmate — who
“testified that the victim told her that the defendant was sexually
abusing her” and that the schoolmate “told the victim to talk to a
school counselor.” Id. at 428. The supreme court observed that the
witness’ testimony “served merely to corroborate the testimony of
17 the victim that she had told two of her schoolmates” of the abuse
and that “one of them had told her that she ‘should have told
somebody.’” Id. The supreme court concluded that it could not
“say with fair assurance that the omission to instruct the jury in
accordance with section 13-25-129[(6)] so undermined the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” Id.
¶ 29 In McClure, the supreme court acknowledged its earlier
decision in Wood but distinguished it on three bases: (1) Wood
“involved the testimony of one witness as opposed to five”; (2) in
Wood, “there was no danger that testimony given by an expert
would be imbued with special credibility, whereas in [McClure] such
a substantial risk does exist”; and (3) the witness in Wood did not
testify to the details of the sexual acts. McClure, 779 P.2d at 867.
We can distinguish Wood from this case for the same reasons.
¶ 30 While Wood considered hearsay testimony from one
school-aged child, 743 P.2d at 428, the hearsay here came through
seven adult witnesses, including two experts and two police officers.
In addition, the sole hearsay witness in Wood did not disclose any
details of the sexual abuse. Id. Here, several witnesses testified
18 about the details of both the charged assault and the prior assaults
and were used to introduce documentary and video exhibits that set
forth C.B.’s statements detailing the abuse. Finally, although the
hearsay evidence was “corroborative” of some of C.B.’s testimony
about the prior instances of assault, it was neither “cursory” nor
merely “cumulative” of C.B.’s account given her inability to recall
specific details of the charged abuse. Id.
¶ 31 That said, we see some gaps in the analysis in McClure that
give us pause. First, as the People contend, any prejudice resulting
from the district court’s error here was arguably mitigated by the
court giving the general credibility instruction, which encourages
the jury to judge witness credibility by many of the same factors as
the child hearsay cautionary instruction. See COLJI-Crim. E:05
(2024). The supreme court in McClure did not indicate whether the
trial court had given the jury a standard general credibility
instruction. But in Wood, the court thought that was important to
the analysis — and for good reason. The model general credibility
instruction says the following:
You are the sole judges of the credibility of each witness and the weight to be given to the witness’s testimony. You should carefully
19 consider all of the testimony given and the circumstances under which each witness has testified.
For each witness, consider that person’s knowledge, motive, state of mind, demeanor, and manner while testifying. Consider the witness’s ability to observe, the strength of that person’s memory, and how that person obtained his or her knowledge. Consider any relationship the witness may have to either side of the case, and how each witness might be affected by the verdict. Consider how the testimony of the witness is supported or contradicted by other evidence in the case. You should consider all facts and circumstances shown by the evidence when you evaluate each witness’s testimony.
You may believe all of the testimony of a witness, part of it, or none of it.
COLJI-Crim. E:05.
¶ 32 By comparison, section 13-25-129(6) says the court must tell
the jurors that
during the proceeding the jury heard evidence repeating a child’s out-of-court statement and that it is for the jury to determine the weight and credit to be given to the statement and that, in making the determination, the jury should consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
20 ¶ 33 The primary difference between these two instructions is that,
unlike the general credibility instruction, the child hearsay
cautionary instruction expressly tells the jury that it should
consider “the age and maturity of the child” when assessing the
credibility of the child’s out-of-court statements. But even in the
absence of an express instruction, it is reasonable to believe that
jurors would consider the child’s age and maturity because those
facts are naturally subsumed within the more general
considerations expressed in the general credibility instruction. The
court in Wood apparently thought so too, since it concluded that
the general credibility instruction “adequately made [the jury] aware
of its responsibility to examine the credibility of the witnesses.”
Wood, 743 P.2d at 428. And yet, the court in McClure did not even
mention the general credibility instruction or acknowledge that just
two years earlier it had deemed that instruction important in the
plain error analysis.
¶ 34 But if the legislature believed that the general credibility
instruction was sufficient to protect the defendant’s rights and
address the danger of unfair prejudice resulting from the admission
of child hearsay, why would it have enacted section 13-25-129(6)
21 requiring an additional instruction? We do not know. But we do
know that the failure to give the instruction can be harmless
because Wood tells us that.5
¶ 35 Importantly, the supreme court has, in other contexts, held
that a failure to follow statutory dictates is harmless unless the
defendant can show prejudice. For example, the supreme court has
held that a defendant’s loss of a statutorily granted peremptory
strike is “necessarily harmless” unless the defendant can show bad
faith or actual participation of a biased juror (which would implicate
the defendant’s constitutional right to a trial before a fair and
impartial jury). Vigil v. People, 2019 CO 105, ¶¶ 11-22; see People
v. Novotny, 2014 CO 18, ¶¶ 14-27. And notwithstanding McClure,
we are hard-pressed to imagine what prejudice might come from a
trial court’s failure to give the child hearsay cautionary instruction
when it gave the general credibility instruction. It may be better
5 Under the supreme court’s more recent pronouncements on
structural and harmless error, failing to give the child hearsay cautionary instruction cannot be the type of error that mandates reversal regardless of prejudice. See, e.g., People v. Abu-Nantambu- El, 2019 CO 106, ¶¶ 24-25 (erroneous denial of a challenge for cause under section 16-10-103(1), C.R.S. 2025, does not require reversal because the statute does not expressly call for that remedy); People v. Novotny, 2014 CO 18, ¶ 20.
22 practice to give the former, but in these circumstances, it is unlikely
to prejudice the defendant to fail to do so.
¶ 36 This brings us to our second concern with the supreme court’s
analysis in McClure. The court emphasized the “suspect nature of
hearsay evidence,” a point with which we do not quarrel as a
general matter, but it did so from the perspective that such
evidence undermines “the defendant’s right of confrontation and his
due process right to a fair trial,” two rights that derive from the
United States and Colorado Constitutions. See McClure, 779 P.2d
at 866-67. It seems that the court may have assumed that a
special instruction like the one required by section 13-25-129(6)
carries with it some constitutional significance. But although “[t]he
confrontation right and hearsay rules stem from the same roots and
are designed to protect similar interests,” id. at 866 (citation
omitted), we are not aware of any authority holding that failing to
instruct the jury specifically to consider the age and maturity of the
child who made a hearsay statement violates or even implicates a
defendant’s constitutional rights. Cf. Vigil, ¶ 16 (recognizing that
while the legislature confers peremptory challenges in aid of
protecting a defendant’s right to a fair and impartial jury, such
23 challenges have no basis in the constitution and are purely a
creature of legislation).6
¶ 37 Third, the legislature has already walked back part of
McClure’s holding. In McClure, the court observed that the statute
did not say when in the course of a trial a court must give the
instruction. It then held that “a trial court must give the cautionary
instruction contemporaneously with the admission of this
particular type of evidence, and again in the court’s general charge
to the jury at the conclusion of the case, and failure to do so is
reversible error.” McClure, 779 P.2d at 866.
¶ 38 But in 1993, the legislature amended the statute to clarify that
the instruction must be given only in “the final written
instructions.” Ch. 150, sec. 1, § 13-25-129(2), 1993 Colo. Sess.
Laws 515 (now codified at § 13-25-129(6)). Given that the
requirement to give the instruction is entirely a creature of statute,
the legislature’s partial abrogation of McClure would seem to
6 The same could be said of the statutory speedy trial deadline
established by section 18-1-405(1), C.R.S. 2025. While that deadline is intended to protect a defendant’s constitutional right to a speedy trial, see Simakis v. Dist. Ct., 577 P.2d 3, 4 (Colo. 1978), the six-month deadline itself is not constitutionally mandated.
24 counsel in favor of attributing less weight to the potential prejudice
occasioned by failing to give the instruction.
¶ 39 Were we writing on a clean slate, these points might persuade
us that failing to give the child hearsay cautionary instruction in
this case did not so undermine the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of
conviction. See Hagos, ¶ 14. But we are not writing on a clean
slate. McClure is the law. And we do not see enough daylight
between the facts in McClure and the facts in this case to justify
distinguishing McClure on any principled basis.
¶ 40 With so many witnesses and exhibits “reinforcing [C.B.’s]
testimony concerning the details of the sexual assault, the child’s
credibility may very well have been bolstered in the eyes of the
jury.” McClure, 779 P.2d at 867. “In the absence of the cautionary
instruction, which makes the jury aware of the suspect nature of
hearsay evidence, the jury may have failed in its responsibility to
examine the credibility of the source of these statements.” Id. “In
view of the number of witnesses, their credentials, and the content
of their testimony, we cannot say that the [district] court’s failure to
25 give the cautionary instruction to the jury did not prejudice the
defendant’s rights to a fair trial.” Id.
¶ 41 Thus, we conclude that the district court’s failure to instruct
the jury as required by section 13-25-129(6) constitutes plain error
and mandates reversal. And because the balance of Everett’s
contentions involve alleged errors that are unlikely to arise in the
same context on remand, we decline to address them. See People v.
Aldridge, 2018 COA 131, ¶ 43.
III. Disposition
¶ 42 We reverse the judgment of conviction and remand the case to
the district court for a new trial.
JUDGE J. JONES and JUDGE YUN concur.