22CA1818 Peo v Tapia 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1818 El Paso County District Court No. 21CR4446 Honorable Michael P. McHenry, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Paul Frank Tapia,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Paul Frank Tapia, appeals his conviction for felony
driving while ability impaired (DWAI) under section 42-4-1301(1)(b),
C.R.S. 2024. We affirm in part, reverse in part, and remand to the
district court to correct the mittimus.
I. Background
¶2 On August 6, 2021, Deputy Ian Devlin with the El Paso
County Sheriff’s Office was on duty in Colorado Springs when he
stopped Tapia after seeing his car straddling two lanes of the road.
After speaking with Tapia and conducting a field sobriety test,
Devlin concluded that Tapia was intoxicated beyond the legal limit
and arrested him.
¶3 Devlin then generally explained Colorado’s expressed consent
law and offered Tapia the choice of a breath or blood test. See § 42-
4-1301.1(1), (2)(a)(I), C.R.S. 2024. Because Tapia lacked a valid
driver’s license, Devlin said he did not detail the consequences of
refusing chemical testing. Expressing concerns about leaving his
car unattended, Tapia refused testing.
¶4 Tapia was charged with six counts, including, as relevant
here, driving under the influence (DUI) – fourth or subsequent
offense (a class 4 felony) and five traffic-related offenses. See § 42-
1 4-1301(1)(a). The State dismissed one traffic-related count, and
Tapia’s case went to trial in 2022 on the remaining five counts.
¶5 Tapia’s first trial ended in a mistrial after the State
inadvertently introduced suppressed evidence. The second trial
was bifurcated. In the first phase, the jury considered only whether
Tapia had committed the substantive DUI offense, not whether he
had the requisite prior convictions for a felony DUI. The jury
convicted him of DWAI, a lesser included offense, and the remaining
traffic offenses. See § 42-4-1301(1)(b). In the second phase, the
jury found that Tapia’s prior convictions elevated his 2022 DWAI
conviction to a class 4 felony. See id. He was sentenced to two
years of supervised probation and ninety days in jail.
¶6 On appeal, Tapia challenges his DWAI conviction on three
grounds. First, he contends that the district court erroneously
denied his motion for a mistrial after the prospective jury watched a
video explaining that juries of twelve hear felony cases, and a
prospective juror asked whether the case was a felony. Second, he
contends that the district court erred by instructing the jury that it
could consider his refusal to take a chemical test as evidence of his
guilt or innocence. Third, in the second phase of his trial, he
2 argues that the district court erroneously admitted an exhibit that
the prosecution used to prove a prior DWAI conviction.
¶7 On the first and second issues, we find no error and affirm.
On the third, we conclude that the district court erred by admitting
the challenged evidence and reverse Tapia’s conviction only as it
relates to the felony DWAI. We therefore instruct the district court
to correct the mittimus to reflect a misdemeanor, not a felony,
DWAI conviction.
II. Discussion
A. The District Court Properly Refused to Grant a Mistrial
¶8 Tapia first argues that the district court erred by denying his
motion for a mistrial after a prospective juror asked whether the
case involved a felony. We perceive no error.
1. Additional Facts
¶9 During voir dire, the prosecution asked the prospective jury to
share “anything . . . that we would need to know in deciding if you
are fair and impartial jurors for this case.” Prospective Juror M
said she was familiar with DUIs from receiving one when she was
younger, and her mother “had four or five DUIs.” Juror M
discussed her mother’s challenges with being “in the system” and
3 “the felony [that] comes with all of that stuff.” The prosecution
further probed Juror M’s ability to be impartial, asking whether she
would be comfortable with the potential penalties in Tapia’s case.
Juror M responded: “Yeah . . . . But I didn’t know — so like — this
is a felony, right? It’s 12 jurors? . . . I feel like — is it a felony DUI,
or is it only other charges that come with it that make[] it a felony?”
¶ 10 The prosecution deferred the question to the district court,
who responded that the attorneys were not allowed to share “the
level of offense.” Juror M explained that she asked “because they
told us 12 jurors were felonies in the video that we just watched.”
The subject video is eighteen minutes long and broadly explains the
legal system and a jury’s role in trials. The video briefly describes
different types of juries, explaining that “twelve person juries hear
felony cases involving the most serious crimes.”
¶ 11 Acknowledging its awareness of the video, the district court
said there were “a million different legal reasons that a case could
be in district court as opposed to county court, and we’re not going
to elaborate on what those issues are. So, I guess, the shorthand of
what I’m telling you is, there is some information we’re holding back
from you.”
4 ¶ 12 Later in voir dire, the defense asked the prospective jurors
about their potential biases if a defendant in a DUI trial chose not
to testify. Juror F said, “If I was in his situation under these
charges, I would want to talk for myself . . . explain my situation.
Seems like very serious charges, right?” Juror S offered that, given
the “gravity [of the] situation” and “the charges . . . I think my
confidence has kind of declined on whether I can be completely
impartial.”
¶ 13 Jurors M, F, and S were dismissed. After the final twelve
jurors were sworn in, the defense moved for a mistrial, arguing that
the video and Juror M’s question about whether the trial involved a
felony charge had tainted the jury pool. The defense was concerned
about the jury knowing that “a felony DUI is a repeat DUI.”
¶ 14 The district court noted that it had previously wondered
whether the video might cause an issue but declined to grant a
mistrial, concluding that there was no real prejudice because (1) the
jury had not learned of any “uncharged misconduct”; (2) the jury
had not been told why there was a twelve-person jury; and (3) the
trial was bifurcated.
5 ¶ 15 The district court also admonished defense counsel for not
objecting before the jury was sworn in. The prosecutor took partial
responsibility for the delay because, anticipating the objection, she
told defense counsel, “we can probably just do this when the judge
sends them back.” However, defense counsel acknowledged that he
waited partly because he did not want to “make[] that moment any
greater” by objecting contemporaneously.
2. Standard of Review and Applicable Law
¶ 16 A district court’s refusal to grant a mistrial may implicate due
process, see People v. Van Meter, 2018 COA 13, ¶ 12, and we review
alleged due process violations de novo, People v. Burlingame, 2019
COA 17, ¶ 11. However, absent a constitutional violation, we review
the decision to deny a mistrial for an abuse of discretion. See Van
Meter, ¶ 9. A district court abuses its discretion if its ruling is
manifestly arbitrary, unreasonable, or unfair, or contrary to law.
Id. In this context, a district court “has considerable discretion”
because it “is in a better position to evaluate any adverse effect of
improper statements or testimony on a jury.” Id. (citation omitted).
¶ 17 “When a prospective juror makes a potentially prejudicial
statement during voir dire, the trial court may issue a curative
6 instruction; canvass the jury; or declare a mistrial.” Id. at ¶ 10
(citation omitted). “Whether a prospective juror’s statement is
potentially prejudicial depends significantly on the facts and
circumstances.” People v. Avila, 2019 COA 145, ¶ 53, overruled in
part on other grounds by Tibbels v. People, 2022 CO 1. As a drastic
remedy, a mistrial “is ‘only warranted where the prejudice to the
accused is too substantial to be remedied by other means.’” Van
Meter, ¶ 11 (quoting People v. Collins, 730 P.2d 293, 303 (Colo.
1986)).
¶ 18 A prospective juror’s statement that exposes the jury to
extraneous information may implicate a defendant’s due process
right to a fair trial, warranting a mistrial. See id. at ¶¶ 12-13. To
determine whether such a statement implicated due process, we
consider “whether the information was improperly before the jury,
and . . . ‘whether there is a reasonable possibility that the
extraneous information influenced the verdict’ to the defendant’s
detriment.” Id. at ¶ 12 (citation omitted). Purely speculative
allegations about the effects of a prospective juror’s statement on
other jurors do not meet this standard. See id. at ¶ 14.
7 3. Analysis
¶ 19 Tapia contends that the district court erred by not granting his
request for a mistrial given the combined prejudicial effects of Juror
M’s statements and the video shown to the jury pool. He argues
that the prejudice is “substantial” because a felony DUI necessarily
suggests prior offenses. Yet he also notes that learning the offense
was a felony “potentially informed [the jury] of criminal history [it]
otherwise wouldn’t have known about.” (Emphasis added.) To
support his argument that Juror M’s statement “tainted the entire
jury pool,” Tapia cites Juror F’s and Juror S’s comments about the
nature of the charges.
¶ 20 The State argues that Tapia waived any right to request a
mistrial by failing to object until after the jury was sworn in and
that Tapia’s claim of prejudice is too speculative to warrant a
mistrial. See Crim. P. 24(b)(2) (“All matters pertaining to the
qualifications and competency of the prospective jurors shall be
deemed waived . . . if not raised prior to the swearing in of the
jury . . . .”); People v. Mumford, 275 P.3d 667, 671 (Colo. App. 2010)
(concluding that a defendant waived his right to request a mistrial
under Crim. P. 24(b)(2) by objecting too late), aff’d, 2012 CO 2.
8 ¶ 21 Even assuming Tapia did not waive the error, we cannot say
that the prejudice was significant enough to warrant a mistrial
because his claims of prejudice rest on speculation. See Van Meter,
¶¶ 13-14. Juror F’s and Juror S’s comments related to a
defendant’s right not to testify. Neither comment suggested that
Tapia was charged with a felony due to previous convictions. And
while Tapia assumes that an average juror knows felony DUIs
require prior offenses, the record does not substantiate this.
¶ 22 For example, Juror M had received a DUI, was familiar with
repeat DUI offenses from her mother, and implied that her mother
had received a felony DUI. Yet she asked if the trial was for a felony
offense because of “other charges that come with it,” suggesting
that felony DUIs require multiple concurrent charges, not prior
convictions. If a juror so familiar with DUIs did not know that a
felony DUI requires prior convictions, we cannot conclude that the
average juror would understand that “a felony DUI necessarily
implies” prior offenses. And even if some jurors potentially
concluded that the case involved a felony because of prior offenses,
that alone is insufficiently prejudicial to warrant a mistrial. See
People v. Kembel, 2023 CO 5, ¶¶ 54, 57 (holding that bifurcating
9 trials is improper, and evidence of prior convictions in felony DUI
trials “is not unfairly prejudicial”).
¶ 23 Next, similar cases have required stronger evidence of
prejudice to warrant a mistrial. For example, in Van Meter, a
division of this court found no abuse of discretion when the district
court refused to grant a mistrial after a prospective juror, who was
a deputy sheriff, said during voir dire that he was aware of the case
because he had transported the defendant to court. Van Meter, ¶¶
6, 13. The defense argued that this statement prejudicially
informed the jury that Van Meter was in custody, but the division
concluded that the statement did not taint the rest of the jury
because the prospective juror was dismissed and did not say when
he transported Van Meter to court. Id. at ¶¶ 6, 13-14.
¶ 24 In State v. Marchbanks, 632 N.W.2d 725, 728 (Minn. Ct. App.
2001), the court similarly held that a mistrial was not required after
a prospective juror asked if the “[defendant] was ineligible to
possess a firearm because [he] was a felon.” The court reasoned
that there was no prejudice where the prosecutor refused to answer
the question, and the prospective juror did not serve on the jury.
Id. at 729. Conversely, in State v. Yurk, 638 P.2d 921, 925, 928
10 (Kan. 1982), the court held that a mistrial should have been
granted when a sitting juror admitted that he had read a newspaper
article discussing the defendant’s prior convictions.
¶ 25 Here, as in Marchbanks and Van Meter, the prospective jurors
who made allegedly prejudicial statements were dismissed. And
neither the prosecution nor the court answered Juror M’s question.
Her question was also less prejudicial than the comments in those
cases because she did not suggest that Tapia had prior convictions
or was incarcerated. And unlike Yurk, there was no evidence that
sitting jurors suspected or learned of Tapia’s prior convictions.
¶ 26 Tapia also argues that a prospective juror’s suggestion that
the trial involves a felony charge is itself prejudicial, especially if
jurors are unlikely to suspect the offense is a felony. We are not
persuaded.
¶ 27 To support this argument, Tapia cites cases discussing the
prejudicial effects of exposing jurors to sentencing information.
E.g., Shannon v. United States, 512 U.S. 573, 579 (1994); United
States v. Greer, 620 F.2d 1383, 1384-85 (10th Cir. 1980). But
sentencing is not synonymous with an offense’s level. Learning that
a defendant faces a certain sentence is more specific and potentially
11 prejudicial than generally learning that an offense is a felony. And
nothing in the record suggests the jury knew or learned of the
potential sentence merely from Juror M’s comment and the video.
¶ 28 Finally, Tapia argues that Kembel, which had not yet been
decided when his case went to trial, does not mitigate the alleged
prejudice. There our supreme court concluded that district courts
may not bifurcate criminal trials, including felony DUI trials.
Kembel, ¶¶ 54, 57 (describing prior convictions as “always relevant
and admissible” in DUI trials as “evidence of an element of the
substantive offense”). We need not reach this argument because we
conclude that, regardless of bifurcation, the prejudice to Tapia was
not so substantial that the district court erred by refusing to grant
a mistrial. See Van Meter, ¶¶ 11.
B. The District Court’s Refusal Instruction Was Proper
¶ 29 Tapia next argues that the district court erred by instructing
the jury that it could consider a person’s refusal to submit to
chemical testing to determine guilt or innocence. We hold that the
court did not abuse its discretion by giving the instruction.
12 1. Additional Facts
¶ 30 During a jury instruction conference in the first phase of trial,
the district court considered the following proposed instruction
regarding a DUI or DWAI defendant’s refusal to take a chemical
test: “If a person refuses to submit to a chemical test, then the jury
may consider such refusal along with all other evidence in
determining the defendant’s guilt or innocence.” Initially, the
defense did not object. However, after the prosecution informed the
court that the instruction was not in Colorado’s model jury
instructions (the COLJI), the defense objected to it.
¶ 31 Tapia’s objection mirrored the special concurrence’s concerns
in People v. Montoya, 2022 COA 55M, ¶ 55 (Welling, J., specially
concurring), aff’d in part and rev’d in part, 2024 CO 20, in which
Judge Welling recommended that trial courts not give refusal
instructions. The defense also argued that the instruction was
especially prejudicial because Tapia did not receive a “standard
express consent advisement” on the consequences of refusal. The
district court said that it might have agreed with defense counsel
had he objected earlier, but it declined to rework the jury
instruction packets to remove the disputed instruction.
13 2. Standard of Review and Applicable Law
¶ 32 We review de novo whether a jury instruction accurately
informs the jury of the law. McDonald v. People, 2021 CO 64, ¶ 54.
If the instruction is legally accurate, “we review a trial court’s
decision to give a particular jury instruction for an abuse of
discretion.” Id. (citation omitted). A district court abuses its
discretion if its decision is manifestly arbitrary, unreasonable, or
unfair. Id.
¶ 33 In Colorado, evidence of a person’s refusal to submit to
chemical testing is admissible in DUI and DWAI trials. § 42-4-
1301(6)(d). While the statute does not address jury instructions on
such refusals, Colorado appellate courts have concluded that it is
proper to give refusal instructions similar to the one given here.
See Cox v. People, 735 P.2d 153, 155, 159 (Colo. 1987); People v.
Mersman, 148 P.3d 199, 201 (Colo. App. 2006). Therefore,
although “we disfavor instructions emphasizing specific evidence,” it
is sometimes appropriate to give “carefully-worded evidence-
emphasizing instructions.” Krueger v. Ary, 205 P.3d 1150, 1157
(Colo. 2009). For example, an instruction that the jury may, but
14 need not, draw an inference from certain evidence may be
appropriate in certain circumstances. See id.
3. Analysis
¶ 34 Tapia acknowledges that Colorado appellate cases have
accepted refusal instructions as proper, but he argues that these
instructions improperly highlight evidence and urges us to follow
Judge Welling’s reasoning in Montoya. He also contends that the
instruction improperly favored the prosecution’s refusal argument
because Tapia was inadequately advised of the consequences of
refusal, there was evidence that he refused out of concern for his
car, and the evidence of intoxication was minimal. For several
reasons, we conclude that the district court did not err by giving the
challenged instruction.
¶ 35 First, we are not bound by other divisions’ decisions, Chavez v.
Chavez, 2020 COA 70, ¶ 13, much less concurring or dissenting
opinions. So Montoya’s concurrence does not control our decision
here. Second, despite questioning the practice of giving refusal
instructions, Judge Welling noted that “it’s well established that it
isn’t improper for a trial court to instruct a jury in a DUI or DWAI
case that it may consider ‘refusal along with all other competent
15 evidence’ in determining a defendant’s guilt or innocence.”
Montoya, ¶ 57 (Welling, J., specially concurring) (quoting Cox, 735
P.2d at 155). We will not depart from this established precedent.
¶ 36 Third, Judge Welling took issue with the refusal instruction in
Montoya partly because it “called on the jury to make a finding
regarding whether Montoya refused chemical testing.” Id. at ¶ 52.
The instruction said, “If you find that Mr. Montoya refused . . . a
chemical test . . . you may consider this refusal along with other
evidence . . . .” Id. at ¶ 37 (majority opinion) (emphasis added).
Judge Welling distinguished this instruction from the one found
permissible in Cox, which he noted “didn’t ask the jury to make any
findings on the issue of refusal.” Id. at ¶ 52 n.1 (Welling, J.,
specially concurring). The Cox instruction is nearly identical to the
instruction given here. See Cox, 735 P.2d at 155 (“If a person
refuses to submit to such chemical test, then the jury may consider
such refusal along with all other competent evidence in determining
the Defendant’s guilt or innocence.”).
¶ 37 Fourth, even absent precedent supporting refusal instructions,
the fact that we disfavor instructions highlighting specific evidence,
Krueger, 205 P.3d at 1157, did not make the court’s decision to give
16 the refusal instruction manifestly arbitrary, unreasonable, or
unfair, see McDonald, ¶ 54. The instruction emphasized evidence
less than permissible inference instructions, which allow juries to
draw permissible inferences from specific evidence. See, e.g.,
COLJI-Crim. 3.5:10.SP(c) (2023) (There is “[a] permissible inference
that the defendant was under the influence . . . if there was . . .
0.08 or more grams of alcohol per one hundred milliliters of
blood.”).
¶ 38 The refusal instruction here told the jury that it could consider
refusal as evidence of guilt, not that refusal created a permissible
inference of guilt. Model jury instructions with similar language
appear elsewhere in the COLJI. See COLJI-Crim. D:06 (2023) (“A
previous felony conviction is one factor you may consider in
determining the credibility of a witness.”); COLJI-Crim. F:177
(2023) (“In determining whether a substance is an imitation
controlled substance, you may consider, in addition to all other
relevant factors, the following . . . .”).
¶ 39 Finally, we disagree with Tapia that the circumstances
surrounding his alleged refusal (the lack of advisement, concern for
his car, and weak intoxication evidence) rendered the instruction
17 improperly prejudicial. It was the jury’s role to weigh this evidence
and determine whether Tapia refused for reasons other than
consciousness of guilt. See Cox, 735 P.2d at 159. The disputed
instruction merely told the jury that it could consider refusal
evidence; it did not tell the jury how to weigh such evidence.
¶ 40 Therefore, the district court did not abuse its discretion by
giving the refusal instruction. See McDonald, ¶ 54.
C. The District Court’s Evidentiary Ruling Was Erroneous
¶ 41 Finally, Tapia argues that the district court erred in the
second phase of his trial by admitting evidence the prosecution
introduced to prove one of Tapia’s alleged prior convictions. We
agree with Tapia and reverse the portion of his conviction elevating
his DWAI conviction to a felony.
¶ 42 As discussed, felony DUI and DWAI convictions require proof
of “three or more prior convictions, arising out of separate and
distinct criminal episodes, for DUI, DUI per se, or DWAI.” § 42-4-
1301(1)(a), (b). In the trial’s second phase, the State sought to show
that Tapia had three prior DUI or DWAI convictions from 1982,
1986, and 2000. On appeal, Tapia challenges the State’s Exhibit 6
18 (the 1982 Record), documenting the alleged 1982 conviction.
Relevant portions of the 1982 Record are reproduced below.1
The 1982 Record
¶ 43 The 1982 Record is from the Integrated Colorado Online
Network (ICON), an online court database. The portion of the
Record at issue here involves the second count (Count 2), which the
prosecution argued showed a DWAI conviction.
¶ 44 The defense repeatedly objected to the 1982 Record’s
admission. Specifically, during a motions in limine conference
between days two and three of the trial, it objected in part because
the 1982 Record was not an original document, given the lack of
1 Due to the nature of the photocopy, part of the top left corner on
the second page of the 1982 Record is obscured.
19 internet in 1982, and there was no information on how, when, or by
whom the information was copied into ICON. The district court
asked the court clerk to confirm that, when courts transition from
physical to electronic record-keeping systems, “courthouse
employees, court clerks, or judicial assistants would look at those
files and input documents into” ICON. But the clerk did not know
how the process worked.2
¶ 45 For these reasons and others, the defense objected to the 1982
Record’s authenticity and trustworthiness, arguing that it was
inadmissible hearsay, not self-authenticating, and overly prejudicial
under CRE 403. The prosecution countered that it was self-
authenticating under CRE 902, admissible hearsay as a public
record under CRE 803(8), and an ancient document under CRE
803(16). The prosecution also argued that Tapia’s Division of Motor
Vehicles (DMV) records corroborated the 1982 conviction.
¶ 46 Finally, the prosecutor argued that Count 2’s dispositional
language, describing a conviction for a lesser charge, was not
ambiguous. She reasoned that — because the 1982 Record cited
2 From our review of the record, this question was never answered,
including at trial.
20 the applicable DWAI statute at the time of the offense, section 42-4-
1202(1)(b), C.R.S. 1982 — it proved Tapia was charged with DUI
and convicted of DWAI, the lesser included offense. Indeed, during
opening statements, she said:
[Y]ou are going to see that he was convicted in 1982 also of [DWAI]. You’re going to see that there was a count for [DUI], and right below that, it is going to say convicted lesser charge. You all know . . . that [DWAI] is a lesser charge of DUI. It’s the only lesser charge that a DUI has.
¶ 47 At trial, the district court admitted the 1982 Record over the
defense’s objection. Caitlyn Colvin, an investigator with the District
Attorney’s Office, testified that the 1982 Record was “a record of
conviction.” She also testified that Count 2 showed a charge for
“driving under the influence of alcohol and drugs on 9/24/1982.”
As for the statutory language associated with this count, the district
court took judicial notice of the fact that the DWAI statute in 1982
was section 42-4-1202(1)(b), C.R.S. 1982.
¶ 48 The prosecution later directed Colvin to Exhibit 3 (the DMV
Record), the relevant portion of which is reproduced below with
pertinent information boxed in red:
21 The DMV Record
¶ 49 Colvin testified that “Conviction Date” meant Tapia was
convicted on July 1, 1983, and the eight points assessed on his
license were consistent with a DWAI conviction. See § 42-2-
127(5)(b)(III), C.R.S. 2024. On cross-examination, Colvin admitted
that she could not testify to the “reliability or the[] point of origin”
for any of the records discussed on direct and did “not work at the
office where the[] documents were made.” Nor did she know how
the DMV obtained information from courts.3
¶ 50 Similarly, regarding the 1982 Record, Colvin said she did not
know who entered the information into ICON, when it was entered,
3 During the motions in limine conference, the district court also
asked about the DMV’s process for confirming and listing convictions. The prosecutor admitted that she was not sure how courts were meant to interpret the statute under which the DMV considers a defendant’s failure to appear in court as a conviction. See § 42-2-127(6)(b), C.R.S. 2024 (considering as convictions, “a plea of no contest . . . the forfeiture of any bail . . . or the failure to appear in court by a defendant charged with DUI”).
22 or anything else about the information’s origin.4 Colvin also did not
know what the 1982 Record’s language about a “converted
description” meant. Finally, she testified that the 1982 Record’s
description of the offense date and plea date as September 24,
1982, was likely inaccurate because she was unaware of a situation
in which both would occur on the same day.
¶ 51 District courts have broad discretion to determine the
admissibility of evidence, and we do not disturb such
determinations absent an abuse of that discretion. People v. Brown,
2022 COA 19, ¶ 57. A district court “‘abuses its discretion when its
evidentiary ruling “[is] manifestly arbitrary, unreasonable, or
unfair,”’ or reflects an erroneous understanding or application of
the law.” Id. (citations omitted).
¶ 52 Under CRE 403, even if relevant, “evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.”
4 Notably, despite raising its own questions about the ICON and
DMV records, the district court never asked if the prosecution had a witness who could reliably answer these questions.
23 The rules of evidence favor admissibility, so we afford evidence its
“maximum probative value . . . and the minimum unfair prejudice
to be reasonably expected.” People v. Hood, 2024 COA 27, ¶ 19
(citation omitted).
¶ 53 We review nonconstitutional errors for harmless error and
reverse “only if the error affects the substantial rights of the parties”
such that “the error ‘substantially influenced the verdict or affected
the fairness of the trial.’” Hagos v. People, 2012 CO 63, ¶ 12
¶ 54 Tapia argues that the court should have excluded the 1982
Record because it was (1) inadmissible hearsay that did not fall
under the public record or ancient document exceptions in CRE
803(8) and 803(16); (2) impermissible double hearsay; and (3)
unduly prejudicial under CRE 403. For several reasons, we hold
that the 1982 Record should have been excluded under CRE 403
because its probative value was substantially outweighed by the
risk of prejudice and misleading the jury. Therefore, we need not
reach the hearsay arguments.
24 ¶ 55 First, inconsistencies within the 1982 Record and between the
1982 Record and the DMV Record suggest that one or both
documents contain inaccuracies.5 For example, as Colvin testified,
the dates in the 1982 Record are likely incorrect because they show
that Tapia committed the offense, plead not guilty, and was found
guilty on September 24, 1982. Conversely, the DMV Record lists an
offense date of September 23, 1982, and a conviction date of July 1,
1983. Next, the 1982 Record lists a careless driving charge, a
careless driving conviction, and a DUI or DWAI charge with a
conviction for a “lesser charge.”6 The DMV Record shows a DWAI
charge, an eight-point penalty suggesting a DWAI conviction, a DUI
charge with no points, and no mention of careless driving.
¶ 56 These records are factually and legally inconsistent. For
example, in 1982, a careless driving conviction carried a four-point
penalty on a person’s driver’s license. See § 42-2-123(5)(e), C.R.S.
5 This undermines the State’s suggestion that the DMV Record
corroborates the 1982 Record, making it more reliable. 6 As discussed in detail below, while the charge description says
“driving under influence – alcohol/drugs,” the 1982 Record cites only the DWAI statute, not the DUI statute.
25 1982. Yet, the DMV Record inexplicably omitted the 1982 Record’s
careless driving conviction.
¶ 57 Second, concerning the DMV Record, neither the jury nor the
court heard evidence about how the DMV obtains court records,
what it counts as convictions, or which offenses and convictions it
lists in its records. In fact, as the defense argued, a DUI
defendant’s failure to appear in court is considered a conviction for
purposes of assessing points on a driver’s license. See § 42-2-
127(6)(b), C.R.S. 2024.
¶ 58 Similarly, neither the jury nor the court heard evidence about
how paper records are transferred to ICON, the source of the
records, who copied them, what information might have been
omitted, or what the term “converted description” in the 1982
Record meant. Additionally, no evidence established whether
Tapia’s conviction for a “lesser charge” meant a lesser included
offense or a lesser nonincluded offense. There was also no
explanation about whether the statute cited with the alleged DWAI
conviction was the statute under which Tapia was convicted or
charged. This raises perhaps the most concerning aspect of the
1982 Record, reproduced below with pertinent information
26 highlighted in red boxes:
Does the 1982 Record Show a DUI or DWAI Charge?
¶ 59 As shown, beneath the words “statute number” and “charge
description,” the 1982 Record lists the statute for Count 2 as
section 42-4-1202(1)(b), C.R.S. 1982, the DWAI statute in 1982. At
the time, the DUI statute was section 42-4-1202(1)(a), C.R.S. 1982.
Therefore, although the charge is listed as driving under the
influence of alcohol/drugs, the statutory citation suggests that
Tapia was charged with DWAI but convicted of a lesser charge. So
it is at least possible that the DUI language was a generic “catch-
all” term for alcohol and drug related driving offenses and that the
lesser charge was careless driving.
¶ 60 While the prosecution argued that the 1982 Record showed
Tapia was charged with DUI and convicted of DWAI under section
27 42-4-1202(1)(b), C.R.S 1982, no evidence explained why the 1982
Record would not cite the applicable DUI statute or why it would
list the charged offense’s description next to the convicted offense’s
statute. Therefore, the prosecution’s argument that “Glty Lesser
Crg” referred to a DWAI conviction was not clearly established. This
ambiguity — which the district court itself had earlier recognized —
and the other referenced discrepancies decreased the 1982 Record’s
probative value, while increasing its risk of misleading the jury. See
CRE 403.
¶ 61 We agree with the State that it is the jury’s role to determine
the relative weight of evidence in light of possible errors or
ambiguities. See People v. Poe, 2012 COA 166, ¶ 17. However,
evidence must be excluded if its probative value is “outweighed by
the unfair prejudice resulting from unreliability.” United States v.
Thevis, 665 F.2d 616, 633 n.17 (5th Cir. 1982); see also Taylor v.
Illinois, 484 U.S. 400, 414-15 (1988) (“The integrity of the adversary
process . . . depends both on the presentation of reliable evidence
and the rejection of unreliable evidence . . . .”). Similarly, evidence
must be excluded if there is a substantial risk that the jury will give
it undue and prejudicial weight. People v. Marks, 2015 COA 173,
28 ¶ 39. Here, we conclude that the risks of prejudice and confusion
were too substantial for the jury to fairly consider the 1982 Record’s
probative value. See CRE 403.
¶ 62 First, the jury heard from Colvin that the 1982 Record was “a
record of conviction,” that Tapia had been charged with “driving
under the influence of alcohol and drugs,” and that “DWAI is a
lesser charge” for DUI. (Emphasis added.) Colvin testified that she
had worked in law enforcement for more than a decade and that her
role at the District Attorney’s Office involved “confirming that
someone has prior convictions.” This testimony could have led the
jury to give her testimony substantial weight, even when she could
not explain the discrepancies within and between the two records.
See Marks, ¶ 39; Nuccio v. Shell Pipeline Co., LP, 506 F. Supp. 3d
382, 390 (E.D. La. 2020) (explaining that “definitive statements”
coupled with “unexplained factual inaccuracies” may create undue
prejudice).
¶ 63 The prosecution also used the jury’s recently obtained
knowledge about lesser included offenses from the first phase of the
trial to argue that the 1982 Record’s reference to Tapia’s conviction
for a lesser charge could only mean a DWAI conviction. This gave
29 the jury a plausible and appealing reason to disregard the 1982
Record’s ambiguities and inconsistencies. Together, Colvin’s
testimony, the prosecution’s argument, the ambiguity surrounding
the lesser charge conviction, and the DMV Record’s indication that
Tapia was charged with DUI and convicted of DWAI created a
substantial risk of misleading the jury. See CRE 403.
¶ 64 Finally, the jury had just convicted Tapia of DWAI and was
deciding whether his prior alcohol-related offenses elevated that
conviction to a felony. Under these circumstances, it is possible
that a jury would accept the 1982 Record as evidence of a valid
conviction for improper reasons. See Masters v. People, 58 P.3d
979, 1001 (Colo. 2002) (describing unfair prejudice as “an undue
tendency to suggest a decision on an improper basis,” often “an
emotional one”) (citation omitted); see also United States v. Castillo,
140 F.3d 874, 882 (10th Cir. 1998) (“[E]vidence of the defendant’s
prior criminal acts . . . creates ‘the risk that a jury will convict for
crimes other than those charged — or that, uncertain of guilt, it will
convict anyway because a bad person deserves punishment.’”)
30 ¶ 65 We do not suggest that all evidence of a defendant’s prior
alcohol-related convictions in felony DUI or DWAI trials is always
prejudicial. Cf. Kembel, ¶ 54 (describing such evidence as relevant,
admissible, and “not unfairly prejudicial”). But evidence of a prior
conviction that is so unreliable as to be unfairly prejudicial should
be excluded under CRE 403. See Thevis, 665 F.2d at 633 n.17.
¶ 66 Here, the source and creation of the 1982 Record were
unexplained, the dates were obviously inaccurate, the DMV Record
and the 1982 Record contained discrepancies, it was unclear
whether Tapia had been charged with a DUI or DWAI, and the
meaning of Tapia’s conviction for a “lesser charge” was ambiguous,
especially when the cited statute did not support the prosecution’s
argument about the crime at issue. This reduced the 1982 Record’s
probative value and created a significant risk of confusion. See
CRE 403. Moreover, given Tapia’s prior convictions and the clear
implication from Colvin’s testimony that the 1982 Record and the
DMV Record corroborated a DWAI conviction, the risk that the jury
would improperly credit the 1982 Record outweighed its probative
value. See Masters, 58 P.3d at 1001; CRE 403.
31 ¶ 67 Therefore, the district court erred by admitting the unreliable
1982 Record. Because of the weaknesses in the DMV Record
detailed above, we also conclude that the error was not harmless
because Tapia’s felony DWAI conviction could not stand without the
1982 Record and the evidence it purportedly provided. See Hagos,
¶ 12; § 42-4-1301(1)(b).
III. Disposition
¶ 68 The judgment of conviction is affirmed in part and reversed in
part as it relates to the felony portion of Tapia’s DWAI conviction.
Therefore, we remand for the district court to correct the mittimus
to reflect a non-felony DWAI conviction.
JUDGE GOMEZ and JUDGE LUM concur.