Peo v. Swayzer

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 22CA1410
• Status: Unpublished

Opinion

22CA1410 Peo v Swayzer 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1410 El Paso County District Court No. 21CR4424 Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Myron David Swayzer,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Myron David Swayzer, appeals the judgment of

conviction entered on a jury verdict finding him guilty of

unauthorized absence. We affirm.

I. Background

¶2 Swayzer was participating in an intensive supervision parole

(ISP) program for his prior conviction for sexual assault. As an ISP

parolee, Swayzer was required to wear an ankle monitor. A police

officer pulled Swayzer over after seeing him commit several traffic

violations. As the officer approached his vehicle, Swayzer fled the

scene. Soon after, Swayzer’s parole officer found Swayzer’s ankle

monitor with its strap cut, located in the back of a different vehicle.

An arrest warrant was issued, and, approximately one month later,

Swayzer was arrested.

¶3 The prosecution charged Swayzer with unauthorized absence

in violation of section 18-8-208.2(1)(b), C.R.S. 2024, which

prohibits anyone serving an ISP sentence (or one of several other

types of sentences) from removing or tampering with their electronic

monitoring device. In a separate case, the prosecution also charged

Swayzer with two traffic offenses, eluding a peace officer and

careless driving. The two cases were joined for trial.

1 ¶4 A jury convicted Swayzer on all charges. Unauthorized

absence is elevated from a misdemeanor to a felony if the defendant

was serving a sentence “for a crime listed in section 24-4.1-302(1)[,

C.R.S. 2024].” § 18-8-208.2(2)(a). The jury found in a special

interrogatory that Swayzer’s unauthorized absence was from a

sentence for sexual assault, which is one of the enumerated crimes.

See § 24-4.1-302(1)(n)(I).

II. Admission of Name of Prior Offense

¶5 Swayzer contends the trial court erred by admitting the name

of his prior offense. We disagree.

A. Standard of Review and Applicable Law

¶6 “We review the trial court’s evidentiary rulings for an abuse of

discretion.” People v. Quillen, 2023 COA 22M, ¶ 14. “A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or if it misconstrues or misapplies the

law.” Id. But “[w]e review a trial court’s interpretation of the law

governing the admissibility of evidence de novo.” People v. Johnson,

2021 CO 35, ¶ 15.

2 B. Additional Background

¶7 Defense counsel objected to the admission of evidence

revealing the name of Swayzer’s prior offense. She argued that the

“statute number which accompanies the name of the offense on all

of the sentencing and conviction [packets]” would be sufficient for

the prosecution to prove that Swayzer’s unauthorized absence was

“for a crime listed in section 24-4.1-302.” The trial court overruled

the objection, finding that while there may be “some danger of

unfair prejudice,” the prior conviction for sexual assault is “truly an

element of the sentencing enhancement” and is “hugely probative

because it has to be proven by the People that this is one of the

crimes under . . . [section] 24-4.1-302.” The court further

concluded that the “danger of unfair prejudice [wa]s reduced by the

fact that this [wa]s a crime from more than 20 years ago.”

¶8 During voir dire, defense counsel challenged multiple jurors

for cause after they admitted that they would be unable to consider

Swayzer’s sexual assault conviction for the limited purpose of

determining whether it was the crime for which Swayzer was

serving a sentence at the time of his unauthorized absence. After

the court granted the for-cause challenges, there were not enough

3 jurors remaining for the parties to exercise their peremptory

challenges, and the judge declared a mistrial.

¶9 During the rescheduled trial, defense counsel renewed the

objection to the inclusion of the name of Swayzer’s prior offense,

but the court overruled this objection. Potential jurors were once

again asked if they would be able to consider Swayzer’s prior

conviction for the limited purpose of determining “whether or not

the District Attorney has proven . . . beyond a reasonable doubt

that he was serving a sentence for sexual assault.” A sufficient

number of jurors indicated that they would be able to consider his

prior offense for this limited purpose, and a panel was selected.

C. Analysis

¶ 10 Swayzer contends that the probative value of revealing the

name of his prior offense — sexual assault — was substantially

outweighed by its prejudicial effect and confusion of the issues.

Swayzer also argues that naming his prior offense misled the jury

“from its task of fairly evaluating the charged offense to instead,

punish . . . Swayzer for a particularly stigmatic prior offense.”

¶ 11 “[E]vidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

4 confusion of the issues, or misleading the jury . . . .” CRE 403

(emphasis added). Trial courts have considerable discretion in

determining whether the probative value of evidence outweighs its

prejudicial effect. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002).

And “[b]ecause the balance required by CRE 403 favors admission,

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.

¶ 12 Swayzer’s prior conviction for sexual assault was directly

related to the prosecution’s case against him. The trial court

concluded that the name of the conviction was “hugely probative”

because it was an element the prosecution had to prove to pursue

the charge as a class 6 felony. See § 18-8-208.2(2)(a). And during

the rescheduled trial, the trial court reemphasized the importance

of naming the prior offense, finding that “it’s the gravamen of at

least the [unauthorized absence] [i]nterrogatory” and that “it creates

a lot of confusion for a jury if they just see the number of the

statute, [and] don’t see the name of [the offense].” See

COLJI-Crim. 8-2:24.6 (2024).

5 ¶ 13 The trial court, in exercising its substantial discretion,

determined that while the name of the offense was prejudicial, the

danger of that prejudice was mitigated by the age of the crime and

that its probative value ultimately outweighed its prejudicial nature.

See People v. Kembel, 2023 CO 5, ¶ 53 (“[N]o limiting jury

instruction can completely eliminate the potential prejudice to a

defendant”; however, while “[e]vidence that’s relevant and

admissible may be prejudicial to a defendant, . . . it is not unfair.”).

And the court further concluded that failing to include the name

would actually mislead the jury. As the reviewing court, we “must

afford the evidence the maximum probative value attributable by a

reasonable trier of fact.” Rath, 44 P.3d at 1043. In doing so, we

cannot say the trial court abused its discretion in admitting the

name of Swayzer’s prior offense.

¶ 14 We reject Swayzer’s argument that “introducing the name and

nature of the prior offense is not required [under section

18-8-208.2(2)(a)] and introducing the statute number more than

sufficed for the prosecution to prove the elevated crime.” Swayzer

contends that “CRE 403 . . . is an important tool to ‘exclud[e]

matters of scant or cumulative probative force.’” Yusem v. People,

6 210 P.3d 458, 467 (Colo. 2009) (quoting Masters v. People, 58 P.3d

979, 1001 (Colo. 2002)). As noted, however, the probative value of

Swayzer’s prior sexual assault conviction was not minimal; to the

contrary, it was a sentence enhancer that the prosecution had to

prove to the jury beyond a reasonable doubt. Thus, Swayzer’s

contention that the trial court should have excluded the name of

the offense because it offered little probative value is unpersuasive.

¶ 15 Notwithstanding Swayzer’s contrary contention that the

statute number alone was adequate, the relevant statutory

language defines the charge as a class 6 felony when “a person

commits unauthorized absence for a crime listed in section

24-4.1-302(1).” § 18-8-208.2(2)(a) (emphasis added). A “crime” is

“[a]n act that the law makes punishable.” Black’s Law Dictionary

466 (12th ed. 2024). An “act” is “the doing of a thing,” or

“something done voluntarily.” Merriam-Webster Dictionary,

https://perma.cc/Y43J-EKVY. The statute number is not an act.

Rather, Swayzer’s committing sexual assault was the “act” in this

case. Thus, to prove the sentence enhancer, the prosecution had to

present evidence of the crime for which Swayzer was serving a

sentence.

7 ¶ 16 Furthermore, the People argue, and we agree, that “the

prosecution [is entitled] to prove its case in the manner it sees fit.”

People v. Silva, 987 P.2d 909, 918 (Colo. App. 1999). Given that

Swayzer’s prior offense was a fact that had to be proved to the jury,

the prosecution was well within its right to prove that Swayzer was

serving a sentence for sexual assault by eliciting testimony from his

parole officer and admitting evidence that showed his conviction for

the same. And while “the court still must balance the probative

value of the proffered evidence against the danger of unfair

prejudice,” id., we have already concluded the trial court did so.

¶ 17 Finally, Swayzer argues that, once the court allowed the name

and nature of the prior offense to be admitted, the “evidence of

sexual assault became the main focus of the trial.” To support this

contention, Swayzer points to the court’s discussion with the jury

pool about its limiting instruction, testimony elicited from Swayzer’s

parole officer confirming that “[h]e was on parole for a sex assault

case,” two exhibits submitted by the prosecution listing Swayzer’s

name and an associated charge of sex assault, and four instances

during the prosecution’s closing where they referenced sexual

assault.

8 ¶ 18 First, the court’s discussion of sexual assault was to ensure

that the jury consisted only of individuals who could consider the

prior offense evidence for the limited purpose of determining

whether it was the underlying crime for the sentence Swayzer was

serving, thus safeguarding the fairness of the proceedings. As for

the remainder of Swayzer’s examples, in the course of a full-day

jury trial, the phrase “sexual assault” came up approximately half a

dozen times, but each instance was in the context of proving to the

jury that Swayzer had been convicted of, and was serving a

sentence for, sexual assault. We do not agree that sexual assault

was the main focus of the trial.

III. Denial of Supplemental Jury Questionnaire

¶ 19 Swayzer next contends the trial court erred by denying his

request for a supplemental jury questionnaire. We disagree.

¶ 20 We review a trial court’s decisions regarding the use and

content of a juror questionnaire for an abuse of discretion. People

v. Toro-Ospina, 2023 COA 45, ¶ 30. The use of juror questionnaires

in the jury selection process lies within the trial court’s sound

9 discretion. Crim. P. 24(a)(3) (“In the discretion of the judge, juror

questionnaires . . . may be used.”).

B. Additional Background

¶ 21 In the days leading up to the rescheduled trial, defense

counsel filed a motion for a supplemental jury questionnaire. The

proposed supplemental questionnaire contained two questions

addressing whether a defendant’s conviction for sexual assault

would impact a juror’s “ability to be fair and impartial” and whether

a juror would be able to consider that conviction for the limited

purpose of determining “whether or not the defendant was in fact

serving a sentence for that crime.” The court denied the request,

saying that it “planned to do the questioning on the subject so that

the evidence of a sexual assault sentence can be properly couched,”

and it would do so in terms that the questionnaire did not address.

¶ 22 Swayzer argues that the trial court’s decision to deny the

supplemental jury questionnaire was unreasonable, particularly in

light of the mistrial. Specifically, Swayzer contends that the

questionnaire would have “further[ed] the purposes of voir dire by

identifying jurors subject to a challenge for cause” and “help[ed]

10 jurors express bias they might not be willing to share in a room full

of strangers.”

¶ 23 The trial court stated that it would explain the elements of the

charge, the interrogatory, and the limiting instruction to the jury

and that both parties would have the opportunity to further

question potential jurors based on their responses. The court also

told the jurors that they could request to speak with the court

privately about any concerns they may have. The trial court’s

framing of Swayzer’s prior conviction addressed all the issues the

proposed supplemental jury questionnaire intended to resolve.

Considering the trial court’s discretion in deciding whether to use

jury questionnaires and what questions to include, see Crim. P.

24(a)(3), we conclude that the court did not abuse its discretion in

declining to include the requested questions.

IV. Disposition

¶ 24 The judgment is affirmed.

JUDGE YUN and JUDGE SULLIVAN concur.