Peo v. Harmon

2025 COA 38

• Court: Colorado Court of Appeals
• Decided: April 10, 2025
• Docket: 21CA1443
• Status: Published

Opinion

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 April 10, 2025

2025COA38

No. 21CA1443, Peo v Harmon — Constitutional Law — Sixth Amendment — Confrontation Clause; Evidence — Hearsay Exceptions — Declarant Unavailable — Former Testimony

As a matter of first impression, a division of the court of

appeals addresses whether a prosecutor may introduce evidence in

a criminal trial of a deceased witness’s testimony from a civil trial

under the unavailable declarant exception to the hearsay bar.

Because the defendant’s counsel was fully motivated to

vigorously cross-examine the deceased declarant at the civil trial

and had ample opportunities to do so, the division concludes that

the trial court properly admitted the testimony and therefore did

not violate the defendant’s confrontation rights. COLORADO COURT OF APPEALS 2025COA38

Court of Appeals No. 21CA1443 Delta County District Court No. 19CR17 Honorable Steven L. Schultz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Henry Harmon,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur

Announced April 10, 2025

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, William Henry Harmon, appeals the judgment of

conviction entered on a jury verdict finding him guilty of attempted

first degree murder and two counts of stalking. We affirm the

judgment.

¶2 The resolution of Harmon’s claims requires us to address the

novel issue of whether a prosecutor may introduce into evidence in

a criminal trial a deceased witness’s testimony that was given at a

prior civil trial. Because Harmon’s counsel was fully motivated to

vigorously cross-examine the witness at the prior civil trial and had

ample opportunities to do so, we conclude that the trial court did

not violate Harmon’s confrontation rights or the hearsay rule by

admitting the testimony at the criminal trial.

I. Background and Procedural History

¶3 The jury heard the following evidence that supports the

verdicts.

¶4 Paul and Anna Hershberger1 owned and operated Hershberger

Construction, LLC (Hershberger). The company specialized in

constructing steel buildings. In September 2014, Hershberger and

1 Due to their shared last name, we refer to Paul and Anna by their

first names to avoid confusion. We mean no disrespect in doing so.

1 Harmon entered into a contract to erect such a building on

Harmon’s property. When they signed the agreement, Harmon was

unsure where he wanted to place the building, so they agreed to

store it at Hershberger’s headquarters, which was directly across

the street from Paul and Anna’s residence.

¶5 In 2015, the parties’ relationship deteriorated due to Harmon’s

uncertainty about when and where he wanted to place the building

and delays in completing the project. Lyle Wingard, a former

Hershberger employee and Paul’s son-in-law, testified that, in

August 2015, during a phone conversation about the building’s

location, Harmon told Wingard that he would shoot Paul and stated

that “Paul is still being nice to me; he doesn’t believe that I’m going

to kill him.” Wingard informed Paul of Harmon’s threat. Anna and

Paul were unnerved by the threat and took various safety measures,

including installing security cameras and creating an escape plan

from their home in the event Harmon showed up at their residence.

¶6 In response to the threat, Paul sent Harmon a letter in which

he terminated the contract. The letter banned Harmon from the

Hershberger property and gave him until the end of 2015 to engage

a third party to remove the building. The letter included a check

2 with a partial refund of the contract price. This, however, wasn’t

the end of the parties’ involvement with each other.

A. The Civil Litigation and Subsequent Interactions

¶7 Throughout 2016, the parties remained locked in a dispute

over the termination of the contract. After the parties were not able

to reach an agreement, in 2017, Harmon sued Hershberger for

breach of contract, requesting that the civil court rescind the

contract and award him the entire amount that he had paid for the

building. Hershberger counterclaimed for damages and lost profits,

and defended the breach of contract claim on the basis that

Harmon’s death threat against Paul had rendered Hershberger’s

performance of the contract impossible.

¶8 Judge Steven L. Schultz presided over the civil case and set

the matter for a two-day bench trial in July 2018. Paul testified on

both days about the contract and the nature of the threat.

Harmon’s counsel examined Paul extensively about various aspects

of the parties’ interactions. Harmon also testified during the civil

trial and conceded that he had threatened to shoot Paul and

confirmed making that threat in his subsequent conversation with

Wingard.

3 ¶9 In November 2018, the civil court issued a written ruling

finding that Harmon’s threat did not excuse Hershberger’s

performance under the contract, particularly in view of the parties’

subsequent discussions. The court ultimately found both parties at

fault for nonperformance. It ordered Hershberger to refund a

portion of the purchase price and ordered Harmon to remove the

steel building from Hershberger’s property within sixty days.

¶ 10 Harmon was apparently unable to move on despite the civil

court’s resolution of the case. Throughout December 2018,

Harmon engaged in a series of actions that alarmed Paul and Anna,

including parking in their driveway on at least six different

occasions. On one occasion, Harmon showed up at their home

twice on the same day but did not try to contact them directly.

They reported the incidents to the police.

¶ 11 In late December 2018, Anna noticed Harmon following their

vehicle as they travelled to church. At the criminal trial, Harmon

admitted following Paul and Anna to church on multiple occasions,

purportedly because he had questions about their honesty and

wanted more information about their beliefs. He stated that he

remained a few blocks behind them after they left the house and sat

4 in the church parking lot and observed them while they were in

church. Harmon testified that he did not intend to scare or bother

Paul and Anna, and that he intentionally stayed away from them.

B. The Arrest, Criminal Trial, and Conviction

¶ 12 In January 2019, things came to a head after Anna saw

Harmon in their driveway and called the police. Shortly after the

call, law enforcement stopped Harmon as he drove away from the

property. He appeared intoxicated.

¶ 13 Deputy Wade Carney testified that, after he informed Harmon

that the stop was in relation to a possible harassment claim,

Harmon admitted that he had threatened to shoot Paul and

“everybody knows that.” Harmon was arrested on suspicion of

driving under the influence of alcohol after failing roadside tests.

¶ 14 The police seized Harmon’s vehicle shortly after his arrest and

recovered bullets, zip ties, and two loaded guns, one of which was

hidden within an empty six-pack container. The police also found a

note in Harmon’s home that read in part:

Told me he was going to Africa for month.

I told him that I had a buyer for site and could make [$]45,000 would rather have building will get started soon

5 No schedule

(1) Told him put the building up!!

(2) Give me my money back

(3) Or I will shoot you

¶ 15 Based on this investigation, Harmon was eventually charged

with multiple criminal offenses2 including, as relevant here,

attempted first degree murder, stalking (credible threat), and

stalking (serious emotional distress).

¶ 16 The criminal case was assigned to Judge Schultz. The People

filed a “notice” asking Judge Schultz to consider recusing based on

his involvement in the prior civil case, but they did not file a recusal

motion or request that he recuse himself from the case. Defense

counsel joined the notice but did not make any argument in

support of recusal. Neither party submitted any affidavits in

support of the notice. Judge Schultz declined to recuse himself.

¶ 17 In 2020, Paul died in an unrelated motorcycle accident.

Because Paul was unavailable to testify at the criminal trial, the

People moved to admit portions of the transcript of Paul’s testimony

2 Harmon was charged with seven counts, including driving under

the influence of alcohol, but he only challenges the attempted first degree murder and stalking (credible threat) convictions.

6 at the civil case concerning Harmon’s threat. The trial court

admitted the testimony over defense counsel’s objection after

finding that, during the civil trial, Harmon’s counsel had an

opportunity and similar motive to cross-examine Paul about

Harmon’s threat.

¶ 18 After a six-day trial, the jury convicted Harmon on each of the

submitted counts, including attempted first degree murder and the

two stalking charges. The trial court sentenced Harmon to ten

years in community corrections.

II. Issues on Appeal

¶ 19 Harmon argues on appeal that the evidence was insufficient to

convict him of either attempted first degree murder or stalking

(credible threat). Next, he argues that the trial court erred by

admitting Paul’s testimony from the civil trial, and relatedly that the

court erred by allowing the jury to hear portions of Paul’s testimony

read from the official transcript rather than the audio recording of

that testimony. Harmon also argues that the trial judge erred by

failing to recuse himself from presiding over the criminal case.

Finally, he argues the court erred by failing to give an instruction

7 for the lesser nonincluded offense of harassment. We address and

reject each of Harmon’s contentions in turn.

A. Sufficiency of the Evidence Claims

¶ 20 Harmon begins by challenging the sufficiency of the evidence

for the attempted first degree murder and stalking (credible threat)

convictions.

1. Standard of Review

¶ 21 We review the record de novo to determine whether the

evidence was sufficient both in quantity and quality to sustain a

conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).

¶ 22 To determine whether the prosecution presented sufficient

evidence, we consider “whether the relevant evidence, both direct

and circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Id. (quoting People v.

Bennett, 515 P.2d 466, 469 (Colo. 1973)). In a jury trial, the jury

“decides difficult questions about the weight it determines to give

conflicting evidence.” Id. at 1293. Appellate courts do not sit as a

8 thirteenth juror to second-guess the jury’s weighing of the evidence.

See id.

2. Attempted First Degree Murder

a. Applicable Law

¶ 23 A person commits first degree murder if, “[a]fter deliberation

and with the intent to cause the death of a person other than

himself, he causes the death of that person.” § 18-3-102(1)(a),

C.R.S. 2024. A person commits attempted first degree murder if,

acting with the kind of culpability otherwise required for the

commission of first degree murder, he engages in conduct

constituting a substantial step toward the commission of the

offense. People v. Caldwell, 43 P.3d 663, 672 (Colo. App. 2001). A

substantial step is any conduct, whether act, omission, or

possession, that is strongly corroborative of the firmness of the

actor’s purpose to complete the commission of the offense. People

v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007).

¶ 24 The question of what constitutes a substantial step cannot be

resolved by a mechanical rule or litmus test; rather, the analysis

turns on whether the defendant’s conduct “strongly corroborates a

sufficiently firm intent on his part to commit the specific crime he is

9 charged with attempting.” Id. at 1115. A behavior, including, but

not limited to, scouting the place contemplated for the commission

of the offense, searching out the potential victim, or possessing

materials designed for an unlawful purpose may be considered in

evaluating the firmness of a defendant’s criminal purpose. Id.

b. Application

¶ 25 Harmon contends that the prosecution failed to show that he

took a substantial step toward completing first degree murder. He

argues that, because the court had ordered him to remove the

building from Hershberger’s property within sixty days, he had a

legitimate purpose to be at Paul and Anna’s property; he routinely

carried a gun; he did not display a weapon to anyone on the day he

was arrested; and he was driving away from the property when the

police stopped him. Thus, he argues, the facts do not support the

conclusion that he intended to murder Paul. The People counter

that this and other evidence must be viewed in the light most

favorable to the verdict, and that when so viewed, it is sufficient to

support the verdict. We agree with the People.

¶ 26 Viewing the evidence and the reasonable inferences arising

therefrom in the light most favorable to the verdict, as we must, we

10 conclude there is adequate evidence to support the jury’s finding

that Harmon’s conduct went beyond mere preparation and

constituted a substantial step toward committing first degree

murder. Indeed, Harmon told Wingard that he would shoot Paul

and told Deputy Carney that he had threatened to shoot Paul.

Harmon’s handwritten note confirms this intention. Moreover, the

jury heard evidence that, before departing from his home that day,

Harmon had told his wife that he was going to kill the person who

had taken money from him.3 And his subsequent actions

supported the conclusion that he intended to make good on his

threat to shoot Paul.

¶ 27 Although Harmon may have routinely carried a weapon, the

jury could also have found that his possession of guns on the day in

question was anything but routine. He brought a loaded handgun

to the property of the man he had repeatedly followed, confronted,

and threatened to shoot. He concealed the handgun by taping it

3 During her examination, Harmon’s wife denied saying that

Harmon made these statements to her. But the investigating officer who spoke to Harmon’s wife later testified that she reported these statements, and the jury was therefore permitted to consider the statements as substantive evidence. See § 16-10-201, C.R.S. 2024.

11 inside an empty six-pack container. The jury could reasonably

have concluded that the hidden handgun or the concealed shotgun

and ammunition were part of a plan to murder Paul.

¶ 28 Based on this evidence, we conclude that a reasonable juror

could have determined that Harmon had taken a substantial step

toward murdering Paul. Thus, we reject Harmon’s contention that

the evidence was insufficient to support his attempted first degree

murder conviction.

3. Stalking

¶ 29 Harmon also challenges the sufficiency of the evidence related

to his conviction for stalking (credible threat). See § 18-3-602(1)(a),

C.R.S. 2024.

¶ 30 To establish stalking (credible threat), the prosecution must

prove beyond a reasonable doubt that the defendant directly, or

indirectly through another person, and knowingly made a credible

threat to a person and, “in connection with the threat,” repeatedly

followed, approached, contacted, or placed under surveillance that

person, a member of that person’s immediate family, or someone

with whom that person has or has had a continuing relationship.

12 Id. “Conduct ‘in connection with’ a credible threat means acts that

further, advance, promote, or have a continuity of purpose, and

may occur before, during, or after the credible threat.” § 18-3-

602(2)(a).

¶ 31 The supreme court has interpreted the phrase “in connection

with” to mean that the act “must further, promote, or advance the

credible threat.” People v. Baer, 973 P.2d 1225, 1230 (Colo. 1999).

Whether an act is “in connection with” a “credible threat” is a

question properly left to the jury based on the content and context

of the threat and subsequent conduct. Id.

¶ 32 Harmon contends that, because he only made one credible

threat against Paul — back in 2015 — his conduct almost four

years later could not be deemed to be “in connection with” the 2015

threat.

¶ 33 The People argue that there was a reasonable factual basis to

find Harmon guilty of stalking because, under the totality of the

circumstances, the jury could reasonably have concluded that his

actions were to further his undisputed 2015 credible threat. We

agree.

13 ¶ 34 During the 2018 civil trial, Harmon told a court deputy at the

courthouse — within earshot of Anna — that he may be returning

after the lunch break in handcuffs. After the trial, he repeatedly

followed Paul and Anna. Harmon told his wife that he was going to

kill the person who took money from him. And when he was

arrested, Harmon told police officers that he had threatened to

shoot Paul and that he was at Paul and Anna’s home looking for an

opportunity to make good on his threat.

¶ 35 On this evidence, a reasonable juror could conclude that

Harmon’s conduct in late 2018 and January 2019 was in

connection with his 2015 credible threat to shoot Paul. Cf. People

v. Suazo, 87 P.3d 124, 126-27 (Colo. App. 2003) (concluding that a

defendant contacting the victim numerous times in person and by

telephone repeatedly asking to see her was conduct connected to a

prior threat to kill the victim if she did not see him). Thus, we

conclude that there was sufficient evidence to support Harmon’s

conviction for stalking (credible threat).

14 B. Admitting Paul’s Testimony

1. Additional Facts

¶ 36 Before the criminal trial, the prosecution disclosed that, in

view of Paul’s death, it intended to introduce into evidence portions

of Paul’s testimony given during the civil trial. More specifically, the

People endorsed approximately twenty-five pages of Paul’s

testimony in which Paul addressed Harmon’s threat and his efforts

to resolve the contract dispute.

¶ 37 Harmon argued that Paul’s testimony from the civil trial was

hearsay, and that it should not be admitted because Harmon’s

counsel at the civil trial did not have an adequate opportunity or

similar motive to develop Paul’s testimony. See CRE 804(b)(1).

¶ 38 In a thorough written order, the court concluded that Paul’s

testimony at the civil trial was admissible. It reasoned that Paul’s

civil testimony was “testimonial”4 and therefore subject to the

Confrontation Clause, but that the Confrontation Clause was not

violated because Harmon’s counsel thoroughly examined Paul. The

4 Neither party challenges the criminal court’s conclusion that

Paul’s testimony was “testimonial” for purposes of the Confrontation Clause, and we therefore do not address it further.

15 court also concluded that Harmon’s counsel at the civil trial had an

adequate opportunity and motive to cross-examine Paul, and

therefore the testimony was admissible under Rule 804(b)(1).

¶ 39 After the court ruled that Paul’s civil testimony was

admissible, Harmon filed a motion to admit the FTR5 audio

recording of Paul’s testimony in lieu of reading the certified

transcript. The trial court denied the motion, and at trial the court

reporter read approximately twenty-five transcript pages of Paul’s

testimony to the jury.

¶ 40 On appeal, Harmon argues that his convictions should be

reversed because the trial court (1) violated his right to

confrontation under the United States and Colorado Constitutions;

(2) improperly applied CRE 804(1); and (3) improperly had the

reporter read the transcript, rather than playing the FTR recording

of Paul’s testimony. We address each contention in turn.

2. Standard of Review and Applicable Law

¶ 41 We review a trial court’s evidentiary rulings for an abuse of

discretion. Campbell v. People, 2019 CO 66, ¶ 21. “A trial court

5 The initials FTR refer to “For the Record,” the audio-recording

system used in district court proceedings.

16 necessarily abuses its discretion if its ruling is based on an

erroneous view of the law.” People v. Vanderpauye, 2021 COA 121,

¶ 32 (citing People v. Voth, 2013 CO 61, ¶ 15), aff’d, 2023 CO 42.

So if, as in this case, the court’s ruling depends on its interpretation

of a statute or rule, we review that interpretation de novo. People v.

Salas, 2017 COA 63, ¶ 30. Whether a trial court’s ruling violates a

defendant’s constitutional rights presents a question of law that we

also review de novo. People v. McFee, 2016 COA 97, ¶ 28.

a. Confrontation Clause

¶ 42 The United States and Colorado Constitutions guarantee

criminal defendants the right to confront witnesses called to testify

against them. People v. Reynolds-Wynn, 2024 COA 33, ¶ 23. The

Confrontation Clause of the United States Constitution provides

that a defendant shall be entitled to “be confronted with the

witnesses against him.” U.S. Const. amend. VI. Similarly, though

not identically, the Colorado Constitution provides that “[i]n [a]

criminal prosecution[] the accused shall have the right to . . . meet

the witnesses against him face to face.” Colo. Const. art. II, § 16.

¶ 43 A defendant’s right of confrontation “is primarily secured

through cross-examination.” Margerum v. People, 2019 CO 100,

17 ¶ 10. “Cross-examination allows a party to interrogate a witness’s

‘perceptions and memory’ and is also ‘the principal means by which

the believability of a witness and the truth of his testimony are

tested.’” Id. (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).

b. Hearsay

¶ 44 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 not

admissible unless it fits into an applicable exception. See CRE 802-

804.

3. Application

a. Constitutional Challenges

¶ 45 In his pretrial motions challenging the admissibility of Paul’s

civil trial testimony, Harmon cited the Confrontation Clauses of the

United States and Colorado Constitutions. But all of the arguments

and related case law he submitted were based on the Confrontation

Clause found in the Fourteenth Amendment to the United States

Constitution. Indeed, he cited the Colorado confrontation clause

only in the final paragraph of his original motion and supplement

thereto.

18 ¶ 46 On appeal, however, Harmon urges us to interpret and apply

Colorado’s confrontation clause in a manner that affords a

defendant broader protections than those afforded by the

Fourteenth Amendment’s Confrontation Clause. We reject this

effort for procedural and substantive reasons.

¶ 47 From a procedural perspective, by failing to develop the

argument below, Harmon deprived the prosecution and the trial

court of the opportunity to address the issue, which, in turn,

deprives us of the benefit of the trial court’s reasoned resolution.

Because of these inherent deficiencies, we generally do not address

constitutional arguments raised for the first time on appeal.

Martinez v. People, 244 P.3d 135, 139 (Colo. 2010).

¶ 48 But regardless of whether Harmon preserved his state

confrontation clause argument, it fails on the merits. Harmon

concedes that under Crawford v. Washington, 541 U.S. 36, 53-54

(2004), the use of prior testimony by a non-testifying witness is

generally admissible in a criminal trial if the witness is unavailable

and the accused had an opportunity to cross-examine the witness

when the statement was made. But Harmon points to the Colorado

Supreme Court’s decision in People v. Fry, in which the court

19 suggested that a non-testifying, unavailable witness’s testimony is

admissible only if the defendant had an “adequate prior

opportunity” to cross-examine the witness at the prior hearing. 92

P.3d 970, 976 (Colo. 2004) (emphasis added). And the court in Fry

found that the opportunity to cross-examine the witness in the

prior proceeding was not adequate to permit the testimony’s

admission at the subsequent trial. Id. at 981.

¶ 49 But Fry arose in a procedural context far different from that in

this case. In Fry, the People sought to introduce at a criminal trial

the testimony of an unavailable witness that was given at the

preliminary hearing held in the case. In rejecting the admissibility

of that testimony, the supreme court noted that a preliminary

hearing merely requires the People to show probable cause that the

charged offense has been committed and that a criminal defendant

often has strategic reasons not to fully cross-examine a witness in

that context.

¶ 50 As the supreme court noted, “A preliminary hearing is limited

to matters necessary to a determination of probable cause. The

rights of the defendant are therefore curtailed: evidentiary and

procedural rules are relaxed, and the rights to cross-examine

20 witnesses and to introduce evidence are limited to the question of

probable cause.” Id. at 977 (citations omitted). Thus, the court

concluded that the preliminary hearing testimony was not

admissible because the defendant lacked an adequate incentive and

opportunity to fully and robustly cross-examine the witness during

the preliminary hearing. Id. (At a preliminary hearing, the court

“may not engage in credibility determinations unless the testimony

is incredible as a matter of law.”).

¶ 51 In contrast, Paul’s testimony was given at a civil trial on the

merits. As discussed more fully infra Part II.B.3.b, Harmon had

both a strong motive and ample opportunity to fully examine Paul

at the civil trial. Thus, to the extent Fry permits the conclusion

that the Colorado confrontation clause requires a qualitative

analysis of the defendant’s opportunity for cross-examination, we

conclude that the condition was satisfied in this case.

¶ 52 Moreover, in opinions subsequent to Fry, the Colorado

Supreme Court has made clear that the requirements of Colorado’s

confrontation clause are not materially different from Crawford’s

test. See Nicholls v. People, 2017 CO 71, ¶ 31. There the court

stated:

21 [W]e have long interpreted Colorado’s Confrontation Clause as commensurate with the federal Confrontation Clause. See, e.g., Compan[ v. People], 121 P.3d [876,] 885-86 [(Colo. 2005)] (rejecting the petitioner’s argument that the state Confrontation Clause protects broader rights than the federal Confrontation Clause); Blecha[ v. People], 962 P.2d [931,] 941 [(Colo. 1998)] (explaining that Dement adopted the Roberts test[6] “[i]n an effort to maintain consistency between Colorado law and federal law”); [People v.] Dement, 661 P.2d [675,] 680-81 [(Colo. 1983)]. Our holding today maintains the consistency between state and federal law on this issue.

¶ 53 The supreme court’s decisions in instances in which the

prosecution sought to introduce prior testimony from a criminal

suppression hearing or a prior criminal trial bear this out. In these

circumstances, the supreme court has reasoned that prior

testimony is admissible if the defendant had a meaningful

opportunity to cross-examine the unavailable witness about the

pertinent testimony. See, e.g., People v. Madonna, 651 P.2d 378,

385 n.8 (Colo. 1982) (finding the requirements of CRE 804(b)(1)

were satisfied when the deceased witness was questioned about the

relevant events in an earlier suppression hearing in the same case).

6 The Roberts test comes from Ohio v. Roberts, 448 U.S. 56 (1980).

22 ¶ 54 For these reasons, we conclude that the trial court did not

violate Harmon’s confrontation rights under either the United

States or Colorado Constitutions.

b. Admissibility Under CRE 804(b)(1)

¶ 55 In addition to his arguments under the Confrontation Clauses,

Harmon contends that the trial court erred by admitting Paul’s

prior testimony under Rule 804(b)(1), which provides as follows:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

CRE 804(b)(1).

¶ 56 Unlike some of the uncertainties associated with Colorado’s

confrontation clause jurisprudence, Rule 804(b)(1) unequivocally

requires the court to make a qualitative analysis of the prior

opportunity to examine an unavailable declarant. Thus, the

controlling inquiry is whether Harmon’s counsel in the civil trial

23 had “an opportunity and similar motive to develop [Paul’s]

testimony by direct, cross, or redirect examination.” Id.

¶ 57 Harmon notes that no criminal charges had been filed before

the civil trial and that the issues in the civil trial were

fundamentally different than those presented in the criminal case.

Thus, Harmon argues, his counsel had little motive to fully cross-

examine Paul — particularly with respect to the issues most

relevant to the criminal charges — and the trial court erred by

finding that “the same issues were addressed in the prior

proceeding.”

¶ 58 The People counter that the criminal court properly admitted

Paul’s testimony because Harmon’s counsel in the civil trial had

substantial motivation to fully examine Paul about the threat.

¶ 59 As previously noted, the criminal court thoroughly analyzed

these arguments and concluded that Harmon’s counsel in the civil

trial “not only had the motive to cross-examine [Paul] as to [the

threat], but he actually did so.” Indeed, the criminal court found

that both Harmon’s and Hershberger’s counsel spent considerable

time examining Paul about the threat and arguing about its

meaning and impact. As the criminal court observed, “The reason

24 for that focus was simple — the threat itself and [Paul and Anna’s]

reaction to it were central issues in the civil action.” These findings

are supported by the record.

¶ 60 In the face of these findings, Harmon relies on the legal

distinctions between a civil case and a criminal case. Harmon

emphasizes the differences between the “preponderance of the

evidence” civil burden of proof and the criminal “beyond a

reasonable doubt” standard. He also points to differences in the

consequences: monetary or related remedial relief in the civil

context versus potential incarceration in the criminal context.

While not expressly urging us to adopt a per se rule, Harmon seems

to be suggesting that we should hold that testimony from a prior

civil case can never be admitted in a criminal case under Rule

804(b)(1). But Harmon cites no authority, and we are aware of

none, adopting such a broad rule.

¶ 61 In Harmon’s defense, and as both parties concede, no reported

Colorado case has addressed whether prior civil testimony can be

used at a subsequent criminal case. But we are persuaded that

prior civil trial testimony may — in appropriate circumstances — be

admitted in a criminal case under Rule 804(b)(1).

25 ¶ 62 In reaching this conclusion, we rely on principles established

by the supreme court concerning when prior testimony provided in

a criminal case may be used in a subsequent criminal trial. As

previously noted, the supreme court has held that prior testimony

from a preliminary hearing is not admissible in the subsequent

criminal trial. Fry, 92 P.3d at 977-78. This rule flows from the

limited opportunity or motive for robust cross-examination and the

relaxation of procedural and evidentiary rules at a preliminary

hearing versus a criminal trial. Id.

¶ 63 In contrast to Fry’s outcome, the supreme court held in

Madonna that a deceased declarant’s prior testimony at a

suppression hearing was admissible at the subsequent criminal

trial. 651 P.2d at 385 n.8. The court reasoned that the rationale

for

precluding preliminary hearing testimony to be introduced at trial if the witness is unavailable[] is based upon the limited purposes of a preliminary hearing as a screening device for unwarranted charges. Considering the broader purpose of suppression hearings which involve questions of credibility and fact-finding, we see no reason to extend [that] rationale . . . to this factual setting. This is especially true where, as here, the witness was extensively cross-examined at

26 the suppression hearing on the very matters for which the evidence is offered at trial. See also CRE 804(b)(1) . . . , which would also allow admission of this testimony.

Id.

¶ 64 Synthesizing these cases, the supreme court has counseled

that Rule 804(b)(1) permits the use of prior sworn testimony when

there are sufficient opportunities and motivation to fully develop the

prior testimony that is being offered at the criminal trial. Thus, the

focus should not be solely on the type of case in which the proffered

testimony was provided, but rather on whether, during the prior

proceeding, the opponent of the testimony had a full, fair, and

motivated opportunity to examine the unavailable declarant about

the material aspects of the proffered testimony.

¶ 65 As the Second Circuit Court of Appeals has observed,

The proper approach, therefore, in assessing similarity of motive under [Fed. R. Evid.] 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. The nature of the two proceedings — both what is at stake and the applicable burden of proof — and, to a lesser extent, the cross-examination at the prior proceeding — both what was undertaken

27 and what was available but forgone — will be relevant though not conclusive on the ultimate issue of similarity of motive.

United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir. 1993)

(applying FRE 804(b)(1) and excluding use of grand jury testimony

in a later criminal trial); see Galindo v. Valley View Ass’n, 2017

COA 78, ¶ 11 n.6 (“We consider persuasive case law applying the

federal counterpart to [a Colorado rule] because the federal rule and

the state rule are virtually identical.”). Numerous federal courts

have applied similar principles while upholding the admission of

prior civil testimony in a subsequent criminal trial. See, e.g., United

States v. Vartanian, 245 F.3d 609, 613-14 (6th Cir. 2001) (applying

Fed. R. Evid. 804(b)(1) and concluding decedent witness’s testimony

in prior civil action was admissible in defendant’s criminal trial);

United States v. McClellan, 868 F.2d 210, 214-15 (7th Cir. 1989)

(same).

¶ 66 In applying DiNapoli, the Eighth Circuit recently identified

various factors that a court may consider in evaluating the similar

motive factor in Fed. R. Evid. 804(b)(1):

The question of similarity is inherently factual, and thus not conducive to general rules. A court may consider, among other factors, the

28 purpose of the prior proceeding; the nature of the prior proceeding; any differences in the burdens of proof; the information known to the examining party at the time of the prior testimony; the motive of the examining party to avoid disclosing such information; the scope of examination undertaken and forgone, and whether the prior testimony contradicts the evidence introduced at trial.

United States v. Euring, 112 F.4th 545, 552-53 (8th Cir. 2024)

(citations omitted). We agree that these factors provide a useful

analytical framework for assessing the “opportunity and similar

motive” issues under CRE 804(b)(1). But we also emphasize that

the factors are not exclusive and, most importantly, that they must

be applied in a manner that does not lose sight of the central and

controlling inquiry: whether the opponent of the testimony had a

full, fair, and motivated opportunity to examine the unavailable

declarant about the material aspects of the proffered testimony.

¶ 67 The criminal court did not have the benefit of the Euring

decision when it ruled on the admissibility of Paul’s civil testimony.

But the court intuitively relied on many of the factors identified in

Euring, such as the nature and purpose of the prior proceeding, the

scope of Paul’s examination by Harmon’s counsel, the importance of

the testimony to the outcome of the civil proceeding, and the

29 corresponding motivation that Harmon’s counsel had to fully

explore Paul’s testimony concerning the 2015 death threat. Indeed,

the court found that the threat itself was a central issue at the civil

trial and therefore concluded that “Harmon’s civil trial lawyer had

the same motive to cross-examine [Paul] in the [civil] dispute as his

criminal attorney would have had in the case with respect to the

areas that the People have endorsed.”

¶ 68 Moreover, Harmon does not dispute that he threatened to

shoot Paul. Nor does Harmon dispute that his threat was based on

Paul’s alleged breach of the very contract at issue in the civil

litigation. And he does not dispute that, after the civil court entered

its divided judgment, he remained so upset that he began to

repeatedly follow Paul and Anna, culminating with him parking in

their driveway while possessing two guns, one of which was

deceptively hidden inside a six-pack container. Given Harmon’s

actions before and during the civil trial, it begs credulity to suggest

that his counsel was not substantially motivated to fully plumb

Paul’s testimony about the 2015 death threat.

¶ 69 For these reasons, we conclude that the criminal court did not

err by admitting Paul’s civil testimony.

30 c. Transcript Versus FTR Recording

¶ 70 Next, Harmon contends that the criminal court erred by

declining his request to introduce the FTR recording of Paul’s

testimony at the civil trial, rather than the court reporter’s official

transcript. We are not persuaded.

¶ 71 Harmon begins by suggesting that the trial court should have

allowed the jury to hear the FTR recording of Paul’s testimony

because the recording was the “best evidence” of the testimony and

would have aided the jury’s assessment of Paul’s demeanor and

credibility. See CRE 1002 (“To prove the content of a writing,

recording, or photograph, the original writing, recording, or

photograph is required,” subject to exceptions not applicable here.).

But Harmon also acknowledges that the supreme court has held, in

analogous circumstances, that both a transcript and a recording of

the same event are originals entitled to equal dignity. See Banks v.

People, 696 P.2d 293, 297-98 (Colo. 1985) (analyzing a transcript

and recording of a statement made to law enforcement).

¶ 72 Thus, Harmon is left to argue that the trial court abused its

discretion by not introducing the FTR recordings because the

31 recordings better replicated the circumstances of Harmon’s live

testimony. We disagree.

¶ 73 The official record of trial court proceedings is the certified

transcript. “Copies of electronic recordings of proceedings shall not

be used as the official record for purposes of appeal, motions or

other court proceedings. Only certified transcripts by reporters or

authorized transcribers pursuant to this [Chief Justice Directive]

shall be used as the official records of court proceedings.”

Chief Justice Directive 05-03, Management Plan for Court

Reporting and Recording Services, p. 7 (amended July 2023).

¶ 74 This directive is based on numerous practical considerations.

The FTR system was designed for the convenience of the courts, not

as a means of creating an official audio record of trial court

proceedings. Moreover, while usually reliable, FTR recordings are

not foolproof given the limitations of technology; human differences

in terms of enunciation, projection, and use of microphones; and

occasional operational errors in starting the FTR system.

¶ 75 Moreover, we are not persuaded by Harmon’s argument that

an FTR recording necessarily allows a fact finder to better assess a

witness’s credibility than does a transcript. It is true that an audio

32 recording may permit the fact finder to hear the speaker’s tone of

voice, but when heard in isolation from facial and body expressions,

tone of voice can create a misleading rather than informative

impression.

¶ 76 In any event, Harmon cites no legal authority permitting,

much less requiring, the use of FTR recordings in lieu of the

certified record. In the absence of such authority, we cannot

conclude that the criminal court abused its discretion by admitting

the official transcript of Paul’s testimony rather than the FTR

recordings.

C. The Trial Court’s Failure to Recuse

¶ 77 Harmon contends that Judge Schultz reversibly erred by

failing to recuse himself from the criminal case. We disagree.

¶ 78 Upon learning that Judge Schultz was presiding over the

criminal case, the prosecution filed a notice that defense counsel

later joined, requesting that Judge Schultz consider whether

recusal was appropriate because he had presided over the civil case

and the same conduct would be at issue in the criminal case.

33 ¶ 79 Judge Schultz entered a written order declining to recuse

himself. In the order, he reasoned,

Ultimately, the only allegation in the People’s submission supporting their request for disqualification is the claim that “the conduct and actions in [the civil] case is likely to be extensively discussed in testimony in the case at bar.” . . .

The Court has no idea what that statement means or how such testimony would warrant recusal in this case. Given the lack of any legal authority or factual explanation for the request, the People’s notice regarding recusal is DENIED without prejudice.

¶ 80 At a subsequent bond hearing, without first filing a motion for

recusal, defense counsel requested a hearing to address the recusal

issue. Judge Schultz did not set a hearing at that time but noted

that if there was a basis for recusal beyond what was raised in the

People’s earlier notice, counsel could file a motion and supporting

affidavits.

¶ 81 Judge Schultz then denied the oral request in a written order

and directed any party seeking recusal “to file a written motion

supported by factual affidavits as required by the governing rules

and law” and stated that if the court “receives that filing, it will

determine if an evidentiary hearing is warranted.” No party filed a

34 recusal motion or supporting affidavits, and the case proceeded to

trial.

¶ 82 We review de novo whether a trial court judge’s recusal was

required. People v. Garcia, 2024 CO 41M, ¶ 20. The Fourteenth

Amendment’s Due Process Clause mandates recusal when the

objective “probability of actual bias . . . is too high to be

constitutionally tolerable.” Sanders v. People, 2024 CO 33, ¶ 29

(quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)); see also § 16-6-

201(1)(b), (c), C.R.S. 2024 (a judge will be disqualified to hear a case

if the charged offense is alleged to have been committed against the

judge’s person or property or they are in any way prejudiced with

respect to the case, parties, or counsel).

¶ 83 In a criminal matter, a party seeking the substitution of a

judge must file a verified motion within fourteen days of the case’s

assignment, together with supporting affidavits of at least two

credible individuals who are not related to the defendant. Crim. P.

21(b)(1). Any judge who is aware of a circumstance in which they

would be disqualified shall, on their own motion, disqualify

themselves. Id.

35 ¶ 84 A party seeking disqualification must allege concrete facts;

“conclusory statements, conjecture, and innuendo do not suffice.”

Black v. Black, 2020 COA 64M, ¶ 117 (quoting Zoline v. Telluride

Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987)). “Disqualification for

an appearance of impropriety must be distinguished from

disqualification for actual bias. While the former may be waived,

the latter may not.” Rea v. Corr. Corp. of Am., 2012 COA 11, ¶ 22

(citing People in Interest of A.G., 262 P.3d 646, 650 (Colo. 2011));

see also Garcia, ¶ 27 (“[T]his court has recognized that ‘litigants

may waive disqualification when the disqualification is not for

reasons of actual bias or prejudice.’” (quoting A.G., 262 P.3d at

650)).

¶ 85 Harmon contends that Judge Schultz reversibly erred by

failing to recuse himself because he was actually biased against

Harmon, or, at a minimum, the appearance of bias was great

enough that recusal was necessary.

¶ 86 The actual bias, Harmon continues, is that Judge Schultz may

have witnessed some of the criminal conduct the prosecution

alleged and that the judge generated some of Paul’s testimony by

36 asking him follow-up questions. Therefore, Harmon argues, Judge

Schultz functionally operated as an “advocate who generated

evidence relied upon by the prosecution,” and therefore he was

required to recuse.

¶ 87 Harmon also argues that Judge Schultz may have been

present during the 2018 incident Anna described in which Harmon

commented to a courthouse deputy that he may return after lunch

in handcuffs. If Judge Schultz was privy to the comment that

Harmon made to the deputy, Harmon argues, he could have been a

material witness at the criminal trial.

¶ 88 Finally, Harmon argued that, because Judge Schultz made

factual findings and issued the order in the civil case requiring

Harmon to remove the building from the Hershberger’s property,

the jury may have given his findings in the civil case undue weight.

¶ 89 The People respond that Harmon waived any recusal argument

by failing to comply with the requirements of Crim. P. 21(b), and

that even if Harmon had filed a procedurally compliant motion, it

would have failed on the merits. We agree that Harmon waived any

appearance of impropriety argument, and that his argument

asserting that Judge Schultz had an actual bias fails on the merits.

37 ¶ 90 As noted, a party waives the right to assert an appearance of

bias if they do not raise the issue in the trial court. Garcia, ¶ 27;

Rea, ¶ 22. Harmon failed to file a motion or other pleading

asserting that Judge Schultz’s presiding over this case created an

appearance of bias. Thus, Harmon waived his right to make any

appearance of bias argument on appeal, and we do not address it

further.

¶ 91 In contrast, Harmon’s claim of actual bias cannot be waived,

so we address the merits of the contention.

¶ 92 We perceive nothing to support Harmon’s contention that

Judge Schultz was actually biased against him. Despite multiple

opportunities to file a motion for recusal, Harmon failed to do so.

Thus, we lack specific facts to indicate that Judge Schultz was

actually biased. Moreover, the objective facts do not warrant such a

conclusion.

¶ 93 Prior involvement in a case does not automatically require a

judge to recuse themselves. People in Interest of S.G., 91 P.3d 443,

447 (Colo. App. 2004). Nor does the record suggest that Judge

Schultz had a bent of mind that prevented him from treating

Harmon fairly in the criminal trial. Brewster v. Dist. Ct., 811 P.2d

38 812, 813-14 (Colo. 1991) (“Recusal is intended to prevent a party

from being forced to litigate before a judge with a bent of mind.”).

Thus, we perceive no factual basis to support Harmon’s conclusory

appellate assertion that Judge Schultz was actually biased against

him. See Sanders, ¶ 50 (“Only when a judge was actually biased

will we question the reliability of the proceeding’s result. In other

words, while both an appearance of impropriety and actual bias are

grounds for recusal from a case, only when the judge was actually

biased will we question the result.” (quoting People in Interest of

A.P., 2022 CO 24, ¶ 29)).

¶ 94 Given the absence of apparent bias, we discern no error in

Judge Schultz’s decision not to recuse himself from this case.

D. Lesser Nonincluded Instruction

¶ 95 Finally, Harmon contends that the trial court erred by refusing

his counsel’s request that the court instruct the jury on

harassment, a lesser nonincluded offense to the stalking charges.

We discern no error.

1. Standard of Review and Applicable Law

¶ 96 A trial court must accurately instruct the jury concerning the

controlling law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).

39 We review a trial court’s jury instructions, as a whole, de novo to

determine whether the court met this obligation. Id. If the trial

court’s instructions accurately describe the applicable law, we

generally review the court’s decision whether to give a particular

instruction for an abuse of discretion. People v. Paglione, 2014 COA

54, ¶ 45. A trial court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or if it misconstrues

or misapplies the law. People v. Vigil, 2024 COA 72, ¶ 19.

¶ 97 A lesser nonincluded offense is an offense that is subject to

less severe punishment than, and that contains at least one

element that is not part of, the charged offense. People v. Naranjo,

2017 CO 87, ¶ 15. “[A] criminal defendant is entitled to have the

jury presented with the option to convict him of a lesser non-

included offense, so long as a rational evidentiary basis exists to

simultaneously acquit him of the charged offense and convict him

of the lesser offense.” Id.

¶ 98 Harassment is a lesser nonincluded offense of stalking.

Pellegrin v. People, 2023 CO 37, ¶¶ 36-47. To support a guilty

verdict on a harassment charge, the prosecution must prove beyond

a reasonable doubt that the defendant acted “with intent to harass,

40 annoy, or alarm another person” and “[f]ollow[ed] a person in or

about a public place.” § 18-9-111(1)(c), C.R.S. 2024 (emphasis

added).

2. Application

¶ 99 Harmon contends that there was sufficient evidence to support

an instruction on harassment, rather than stalking, because he

admitted that he followed Paul and Anna to church — a public

location — purportedly to learn more about their faith. Harmon

specifically testified in the criminal trial that he “wasn’t trying to

scare them or anything” and “I didn’t get up on their bumper . . . I

didn’t want to bother them.”

¶ 100 Harmon is correct that the act of following Paul and Anna to

church satisfies the first element of a harassment charge. Harmon

also testified, however, that he had no desire to scare them and

actively tried to stay out of their view. This explanation was

consistent with Harmon’s purported desire to obtain more

information about their beliefs. But it is inconsistent with the

mental state element of harassment, which requires proof that

Harmon’s actions were made “with intent to harass, annoy, or

alarm another person.” § 18-9-111(1).

41 ¶ 101 Contrary to Harmon’s argument on appeal, we see no rational

basis by which the jury could have concluded that he followed Paul

and Anna to church, while trying to remain unseen, solely in an

effort to determine their faith, but that he took such action with an

intent to harass, annoy, or alarm them.

¶ 102 Therefore, even if the jury believed Harmon’s purported

explanation for why he followed Paul and Anna to church, there

was no rational basis for the jury to convict him of harassment.

See Naranjo, ¶ 19 (“[A] defendant is not entitled to an instruction on

a lesser non-included offense that contradicts the defendant’s

sworn testimony at trial.”). Accordingly, the trial court did not err

by declining to instruct the jury on the lesser nonincluded offense

of harassment.

III. Disposition

¶ 103 The judgment is affirmed.

JUDGE WELLING and JUDGE KUHN concur.