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 May 15, 2025
2025COA50
No. 23CA1576, People v. Schlehuber — Criminal Law — Model Jury Instructions — Presumption of Innocence, Burden of Proof, and Reasonable Doubt
Addressing four challenges to the 2022 Colorado model jury
instruction on reasonable doubt, a division of the court of appeals
concludes that the instruction does not unconstitutionally lower the
burden of proof, violate the presumption of innocence, or shift the
burden of proof to the defendant. More specifically, a district court
does not err by (1) failing to instruct the jury that reasonable doubt
may arise from “the lack of evidence”; (2) omitting the phrase
“hesitate to act” from the reasonable doubt definition; (3) defining
proof beyond a reasonable doubt as proof that leaves the jury
“firmly convinced” of the defendant’s guilt; and (4) instructing the
jury that the prosecution has failed to meet its burden if the jury
thinks “there is a real possibility” that the defendant is not guilty. COLORADO COURT OF APPEALS 2025COA50
Court of Appeals No. 23CA1576 Mesa County District Court No. 22CR165 Honorable Jeremy L. Chaffin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kyle R. Schlehuber,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE SCHOCK Lipinsky and Sullivan, JJ., concur
Announced May 15, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Kyle R. Schlehuber, appeals his conviction for
driving while ability impaired (DWAI) (fourth or subsequent offense).
He argues that the district court erred by (1) giving the model jury
instruction on reasonable doubt then in effect and (2) admitting a
record of his prior conviction without redaction. We affirm.
¶2 In doing so, we hold that the 2022 Colorado model criminal
jury instruction on reasonable doubt does not unconstitutionally
lower the prosecution’s burden of proof, violate the presumption of
innocence, or shift the burden of proof to the defendant.
I. Background
¶3 While parked at a gas station, Schlehuber was approached by
police because his truck matched the description of a truck that
had reportedly driven through a fence. The first officer to approach
did not smell a strong odor of alcohol on Schlehuber. But the next
officer to arrive did. According to the second officer, Schlehuber’s
breath smelled of alcohol, his eyes were glassy, and his speech was
slurred. Schlehuber told the officer he had drunk four beers.
¶4 The officer arrested Schlehuber and asked if he would be
willing to perform roadside sobriety tests. After initially declining,
Schlehuber agreed, failing all three tests he was given. The officer
1 then drove Schlehuber to a hospital to take a blood test. On the
way, Schlehuber told the officer he took several prescription
medications that made the effect of alcohol “three times worse.”
¶5 Once at the hospital, Schlehuber began making marks on the
blood test consent form, ostensibly to indicate what other
substances were in his system. The officer told him not to write on
the form and gave him a piece of scratch paper to write on instead.
Schlehuber wrote “fuck” on the signature line of the consent form,
which the officer interpreted as a refusal to cooperate with testing.
As a result, Schlehuber’s blood alcohol content was never tested.
¶6 Schlehuber was charged with felony driving under the
influence (DUI) (fourth or subsequent offense), based on three prior
DUI convictions. A jury found him guilty of the lesser included
offense of felony DWAI (fourth or subsequent offense).
II. Reasonable Doubt Instruction
¶7 Schlehuber contends that the district court reversibly erred by
giving the 2022 Colorado model criminal jury instruction on
reasonable doubt. He asserts that the instruction lowered the
prosecution’s burden of proof, undercut the presumption of
innocence, and shifted the burden of proof to him. We disagree.
2 A. Additional Background
¶8 Before 2022, the Colorado model criminal jury instruction
defined reasonable doubt as follows:
Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
COLJI-Crim. E:03 (2021).1 That instruction has been approved by
Colorado courts. See People v. Alvarado-Juarez, 252 P.3d 1135,
1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-63
(Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25
(urging courts to adhere to “long-established pattern instructions”).
¶9 In 2022, the model instruction concerning the presumption of
innocence, burden of proof, and reasonable doubt was substantially
revised to read, in its entirety, as follows:
Every person charged with a crime is presumed innocent. This presumption of
1 The 2021 model instruction also included a paragraph concerning
the presumption of innocence that is nearly identical to the first paragraph of the 2022 model instruction and a final paragraph that is similar to the final two paragraphs of the 2022 instruction. Compare COLJI-Crim. E:03 (2021) with COLJI-Crim. E:03 (2022).
3 innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.
The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.
After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.
After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.
COLJI-Crim. E:03 (2022).
4 ¶ 10 The district court in this case gave the 2022 version of the
instruction verbatim (except that it substituted Schlehuber’s name
for “the defendant”). Schlehuber objected, noting that the new
model instruction had not been approved by any court. He argued
that it lowered the reasonable doubt standard, undermined the
presumption of innocence, and shifted the burden of proof to the
defense. More specifically, he took issue with the “firmly convinced”
and “real possibility” phrases, contending that these phrases could
cause confusion and set the bar for reasonable doubt too high.
Schlehuber proposed a different instruction based on model jury
instructions from other states or, alternatively, requested that the
court use the prior version of the Colorado model instruction.
¶ 11 The district court denied Schlehuber’s request. It explained
that the pertinent language in the 2022 model instruction had been
approved by federal courts and quoted with approval by Justice
Ginsburg in her partial concurrence in Victor v. Nebraska, 511 U.S.
1, 27 (1994) (Ginsburg, J., concurring in part and concurring in the
judgment). The court also concluded that the 2022 model
instruction “presents the concept of reasonable doubt . . . in a more
succinct and understandable fashion” than the prior version.
5 B. Applicable Law and Standard of Review
¶ 12 The United States Constitution “protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). The reasonable doubt
standard gives “concrete substance” to the presumption of
innocence afforded all defendants. Tibbels, ¶ 24 (quoting Winship,
397 U.S. at 363); see also Perez v. People, 2013 CO 22, ¶ 16 (“The
presumption of innocence . . . is a basic component of a fair
trial . . . .” (quoting Estelle v. Williams, 425 U.S. 501, 503 (1976))).
¶ 13 The district court must properly instruct the jury on the
reasonable doubt standard. Tibbels, ¶ 25. Although the court has
some flexibility in how it defines reasonable doubt, an instruction
that lowers the prosecution’s burden of proof below the reasonable
doubt standard is structural error requiring automatic reversal. Id.
at ¶¶ 22, 25. To determine whether an instruction impermissibly
lowered the burden of proof, we apply a “functional test, asking
whether there is a reasonable likelihood that the jury understood
[the] contested instruction, in the context of the instructions as a
6 whole and the trial record, to allow a conviction based on a
standard lower than beyond a reasonable doubt.” Id. at ¶ 36.
¶ 14 Model jury instructions are “intended as guidelines and should
be considered by trial courts.” People v. Morales, 2014 COA 129,
¶ 42; see also Galvan v. People, 2020 CO 82, ¶ 38 (noting that
model instructions “serve as beacon lights to guide trial courts”).
But they are not binding and they are not the law. Krueger v. Ary,
205 P.3d 1150, 1154 (Colo. 2009); People v. Randolph, 2023 COA 7,
¶ 22 (cert. granted Sept. 25, 2023). Nor does adherence to a model
instruction provide a “safe harbor that insulates instructional error
from reversal.” Garcia v. People, 2019 CO 64, ¶ 22. Instead, we
review such an instruction as we would any other. See id. at ¶ 23.
¶ 15 We review de novo whether a jury instruction impermissibly
lowered the prosecution’s burden of proof. Tibbels, ¶ 22. But as
long as the instructions properly inform the jury of the law, the
district court has broad discretion to determine their form and
style. McDonald v. People, 2021 CO 64, ¶ 54. Thus, if the
instructions as a whole correctly inform the jury of the
prosecution’s burden of proof beyond a reasonable doubt, there is
no due process violation. Johnson v. People, 2019 CO 17, ¶ 14.
7 C. Analysis
¶ 16 Schlehuber challenges four aspects of the 2022 model jury
instruction, as given by the district court: (1) its failure to direct the
jury that it could consider the “lack of evidence”; (2) its omission of
the “hesitate to act” phrase that was in the previous model
instruction; (3) its equating reasonable doubt with “a real possibility
that the defendant is not guilty”; and (4) its use of the phrase
“firmly convinced” to define proof beyond a reasonable doubt.
¶ 17 He argues that these errors, individually and collectively,
unconstitutionally lowered the prosecution’s burden of proof to
something less than beyond a reasonable doubt. Although
Schlehuber did not raise his first two arguments in the district
court, we consider all four claims of error because if they lowered
the burden of proof, they would amount to structural error. See
Tibbels, ¶ 22; Stackhouse v. People, 2015 CO 48, ¶ 10 n.3 (noting
that even forfeited structural error requires automatic reversal).
1. Lack of Evidence
¶ 18 The previous version of the model jury instruction provided
that reasonable doubt could arise from “consideration of all of the
evidence, or the lack of evidence, in the case.” COLJI-Crim. E:03
8 (2021) (emphasis added). The 2022 model instruction removed this
sentence and, with it, any reference to the “lack of evidence.”
COLJI-Crim. E:03 (2022).2 Like the previous version, the 2022
instruction continues to provide that the defendant is presumed
innocent “unless, after considering all the evidence, you are
convinced that the defendant is guilty beyond a reasonable doubt.”
Id.; see also COLJI-Crim. E:03 (2021). Schlehuber maintains that
the omission of the “lack of evidence” language undermined the
reasonable doubt standard by diminishing the significance of
“holes” in the prosecution’s case and shifting the burden to the
defense to identify evidence establishing a reasonable doubt.
¶ 19 In an opinion issued today, another division of this court has
rejected this argument. See People v. Melara, 2025 COA 48, ¶ 24.
The Melara division concluded that a district court “should inform
the jury, as part of the reasonable doubt instruction, that it may
consider the lack of evidence in the case.” Id. But despite that
2 In 2023, the Model Criminal Jury Instructions Committee, without
explanation, reinserted the reference to the “lack of evidence” into the definition of reasonable doubt by adding a new sentence that reads, “A reasonable doubt can be based on the evidence presented or the lack of evidence presented.” COLJI-Crim. E:03 (2023).
9 admonition, the division held that the omission of that phrase did
not impermissibly lower the prosecution’s burden of proof in that
case. Id. We agree with Melara that the omission of this phrase
from the reasonable doubt instruction is not structural error.
¶ 20 But in doing so, we depart from Melara in one respect.
Although we agree with Melara that it might be better for a district
court to instruct the jury that it may consider the lack of evidence,
we disagree with Melara’s direction that a court “should” do so — at
least to the extent that direction implies any legal deficiency in an
instruction without such language. Id. at ¶ 28. To the contrary, we
hold expressly that a court does not err by omitting that language.3
¶ 21 As the Melara division recognizes, “the absence of an express
instruction to consider the lack of evidence is not tantamount to a
prohibition on doing so.” Id. at ¶ 32. And as other courts have
3 At least six federal courts of appeals have held that a court does
not err by omitting an explicit reference to the lack of evidence from a jury instruction defining reasonable doubt. See United States v. Petty, 856 F.3d 1306, 1311 (10th Cir. 2017); United States v. Jacques, 266 F. App’x 824, 828 (11th Cir. 2008); United States v. Rogers, 91 F.3d 53, 57 (8th Cir. 1996); Leecan v. Lopes, 893 F.2d 1434, 1443 (2d Cir. 1990); United States v. Baskin, 886 F.2d 383, 388 (D.C. Cir. 1989); Rault v. Louisiana, 772 F.2d 117, 137 (5th Cir. 1985). We are not aware of any case that has held to the contrary.
10 pointed out in upholding instructions that do not refer to the lack of
evidence, the concept of reasonable doubt inherently invites jurors
to consider what evidence is missing. See United States v. Rogers,
91 F.3d 53, 56-57 (8th Cir. 1996) (“That a lack of evidence may
cause one to have a reasonable doubt is self-evident.”); see also
United States v. Petty, 856 F.3d 1306, 1311 (10th Cir. 2017).
¶ 22 We also agree with the People that this conclusion is bolstered
by reading the instruction as a whole, which informs the jury that
(1) the prosecution bears the burden of proof; (2) Schlehuber is
presumed innocent unless the prosecution meets its burden; and
(3) in making that determination, the jury must consider “all the
evidence.” Necessarily, that means that if the prosecution fails to
present sufficient evidence of guilt, it will not have met its burden.
See Petty, 856 F.3d at 1311; see also Rault v. Louisiana, 772 F.2d
117, 137 (5th Cir. 1985) (“These instructions necessarily conveyed
the concept that a reasonable doubt would arise in the absence of
evidence sufficient to show guilt beyond a reasonable doubt.”).
¶ 23 Indeed, although the prior version of the model instruction
referred to “the lack of evidence” in defining reasonable doubt, other
portions of the instruction did not. Instead, like the 2022 model
11 instruction, the prior version directed the jury to determine whether
the defendant was guilty beyond a reasonable doubt “after
considering all the evidence.” COLJI-Crim. E:03 (2021). And it
instructed the jury that it should find the defendant guilty or not
guilty based on whether it did or did not find “from the evidence”
that the prosecution had proved each element of the crime beyond a
reasonable doubt. Id.; see also Robb, 215 P.3d at 1262.
¶ 24 Schlehuber points out that both the United States Supreme
Court and divisions of this court have approved reasonable doubt
instructions that refer expressly to consideration of the “lack of
evidence.” See Johnson v. Louisiana, 406 U.S. 356, 360 (1972),
abrogated on other grounds by Ramos v. Louisiana, 590 U.S. 832
(2020); Robb, 215 P.3d at 1262. But that does not mean the
converse is true — that it is error not to include that phrase. And a
district court “is not obligated to give any jury instruction submitted
by the defendant simply because it correctly states the law.” People
v. Sanders, 2022 COA 47, ¶ 35, aff’d on other grounds, 2024 CO 33.
¶ 25 Thus, we stop short of Melara’s direction about what district
courts “should” do going forward. A district court’s obligation is to
correctly inform the jury of the prosecution’s burden of proof
12 beyond a reasonable doubt. See Tibbels, ¶ 25. And on that issue,
we converge with Melara: the omission of the “lack of evidence”
language did not unconstitutionally lower the prosecution’s burden
of proof below the reasonable doubt standard because there is no
reasonable likelihood the jury understood it to do so. Melara, ¶ 32.
2. Hesitate to Act
¶ 26 The United States Supreme Court and Colorado courts have
upheld — over challenges from criminal defendants — jury
instructions that define reasonable doubt as a doubt that would
cause a reasonable person to “hesitate to act.” See Victor, 511 U.S.
at 20; Alvarado-Juarez, 252 P.3d at 1137; Robb, 215 P.3d at 1263.
¶ 27 But that formulation of reasonable doubt has not come
without criticism. Most notably, in her partial concurrence in
Victor, Justice Ginsburg called the “hesitation to act” analogy
“misplaced” because many of the most important decisions people
make in their lives come with a “very heavy element of uncertainty”
and are “unlike the decisions jurors ought to make in criminal
cases.” 511 U.S. at 24-25 (Ginsburg, J., concurring in part and
concurring in the judgment) (citation omitted). That criticism, in
part, is what prompted the Model Criminal Jury Instructions
13 Committee to remove the “hesitate to act” phrase from the model
jury instruction. See COLJI-Crim. E:03 cmt. 1 (2024).
¶ 28 Schlehuber now argues that the removal of this oft challenged
language improperly lowered the burden of proof. But other than
pointing out that courts have previously approved this language, he
does not say why it is error not to include it. And we do not see why
it would be, so long as the instruction otherwise correctly defines
the reasonable doubt standard. See United States v. O’Brien, 972
F.2d 12, 16 (1st Cir. 1992) (rejecting argument that a court “must
use the ‘hesitate to act’ language when defining reasonable doubt”);
United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992)
(noting that while cases have approved of the “hesitate to act”
language, “failure to use that language does not necessarily
constitute reversible error”). To reiterate the point we make above,
just because a proposed instruction is a correct statement of the
law does not mean the instruction must be given or that it is the
only correct way to articulate the applicable law. Sanders, ¶ 35.
3. Firmly Convinced and Real Possibility
¶ 29 Schlehuber next turns from what the instruction did not say
about the reasonable doubt standard to what it did say. He argues
14 that the instruction erroneously defined (1) reasonable doubt as a
“real possibility that Mr. Schlehuber is not guilty” and (2) proof
beyond a reasonable doubt as proof that leaves you “firmly
convinced” of the defendant’s guilt. Because these two challenged
phrases are two sides of the same coin, we address them together.
¶ 30 To start, this juxtaposition — between believing there is a “real
possibility” the defendant is not guilty, on one hand, and being
“firmly convinced” of the defendant’s guilt, on the other — has been
consistently approved by federal courts as an accurate expression
of the reasonable doubt standard. See, e.g., Petty, 856 F.3d at
1310; United States v. Williams, 20 F.3d 125, 131-32 (5th Cir.
1994); United States v. Taylor, 997 F.2d 1551, 1557-58 (D.C. Cir.
1993); see also Victor, 511 U.S. at 24-25 (Ginsburg, J., concurring
in part and concurring in the judgment) (endorsing a similar
definition as “surpass[ing] others . . . in stating the reasonable
15 doubt standard succinctly and comprehensibly”).4 So has the
“firmly convinced” language alone. See Harris v. Bowersox, 184
F.3d 744, 751-52 (8th Cir. 1999); United States v. Brand, 80 F.3d
560, 566 (1st Cir. 1996). And in Melara, the division approved of
both phrases as “an accurate statement of the law.” Melara, ¶ 30.
¶ 31 We agree with this weight of authority. The phrase “firmly
convinced” correctly connotes a standard of “near certitude,”
Jackson v. Virginia, 443 U.S. 307, 315 (1979) — one that is higher
than “highly probable” but stops short of absolute certainty. See
People v. Camarigg, 2017 COA 115M, ¶ 49 (noting distinction
between “proof beyond a reasonable doubt and proof beyond all
doubt”). And the phrase “real possibility” correctly directs the jury
not to acquit the defendant simply because it can conceive of some
fanciful possibility that the defendant is not guilty. Williams, 20
F.3d at 131; see also Victor, 511 U.S. at 17 (approving of instruction
4 Schlehuber cites two federal cases that disapproved of the “real
possibility” language in a reasonable doubt jury instruction, neither of which held that the inclusion of that phrase was reversible error. See United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987); United States v. McBride, 786 F.2d 45, 52 (2d Cir. 1986). Both cases predated Justice Ginsburg’s concurrence in Victor v. Nebraska endorsing such an instruction. See 511 U.S. 1, 27 (1994) (Ginsburg, J., concurring in part and concurring in the judgment).
16 that a reasonable doubt is “not a mere possible doubt” because
everything “is open to some possible or imaginary doubt”).
¶ 32 Relying on a Hawaii case, Schlehuber contends that “firmly
convinced” is more akin to the lesser standard of clear and
convincing evidence than to proof beyond a reasonable doubt. See
State v. Perez, 976 P.2d 427, 442-43 (Haw. Ct. App. 1998), aff’d in
part and rev’d in part on other grounds, 976 P.2d 379 (Haw. 1999).
We disagree. Clear and convincing evidence is “evidence that is
highly probable and free from serious or substantial doubt.”
Destination Maternity v. Burren, 2020 CO 41, ¶ 10 (citation omitted).
The model instruction used in this case says that proof beyond a
reasonable doubt “requires more than proof that something is
highly probable.” COLJI-Crim. E:03 (2022) (emphasis added). And
it requires the prosecution to dispel any “real possibility” the
defendant is not guilty, not just a serious or substantial one. Id.
¶ 33 We also reject Schlehuber’s argument that the two challenged
phrases are “contradictory” or “create two different standards.”
Rather, the phrases work together to give the jury a complete
picture of the reasonable doubt standard. The first — “firmly
convinced” — describes what it means to have no reasonable doubt.
17 The second — “real possibility” — contrasts that with what it means
to have a reasonable doubt. In other words, the jury could either be
“firmly convinced” of Schlehuber’s guilt (and find him guilty) or
“think there is a real possibility” that Schlehuber was not guilty
(and find him not guilty). Both things could not be true.
¶ 34 Nor does equating reasonable doubt with a “real possibility”
shift the burden to the defendant to establish that real possibility.
Nothing in that phrase suggests that the defendant must be “the
source of the ‘real possibility.’” Taylor, 997 F.2d at 1557. To the
contrary, the district court repeatedly instructed the jury that the
prosecution bears the burden of proving each element of the crime
beyond a reasonable doubt. The “real possibility” language simply
explained the threshold the prosecution must overcome to do so.
4. Cumulative Effect
¶ 35 Finally, Schlehuber contends that even if none of the putative
errors he identifies individually lowered or shifted the burden of
proof or undercut his presumption of innocence, their cumulative
effect was to do so. We disagree. Considering the instruction in its
entirety and “in the context of the instructions as a whole and the
trial record,” we conclude that there is no reasonable likelihood that
18 a jury would understand the 2022 model jury instruction, as given
by the district court in this case, “to allow a conviction based on a
standard lower than beyond a reasonable doubt.” Tibbels, ¶ 36.
III. Record of Prior Conviction
¶ 36 Schlehuber next argues that the district court reversibly erred
by admitting portions of the record of one of his prior convictions
that referred to other criminal charges and probation violations. He
asserts that this information was irrelevant and unduly prejudicial
and should have been excluded under CRE 403 and CRE 404(b).5
Although we agree that certain portions of the record should not
have been admitted, we conclude that any error was harmless.
A. Additional Background
¶ 37 To prove Schlehuber had three or more prior qualifying
convictions, the prosecution introduced certified records of a 2013
5 Schlehuber cites the constitutional right to a fair trial by an
impartial jury. See Howard-Walker v. People, 2019 CO 69, ¶ 23. But he does not develop any constitutional argument, so we decline to address one. See People v. Leverton, 2017 COA 34, ¶ 65. Not every evidentiary error rises to the level of constitutional error. See People v. Dominguez-Castor, 2020 COA 1, ¶ 70; see also Yusem v. People, 210 P.3d 458, 469 n.16 (Colo. 2009) (“Erroneous admission of CRE 404(b) evidence is not error of constitutional dimension.”).
19 Nebraska conviction and two Colorado convictions in 2020 and
2021. Only the Nebraska conviction record is at issue on appeal.
¶ 38 The fourteen-page record of the Nebraska conviction included:
• a criminal complaint charging Schlehuber with DUI
(second offense), driving during suspension, and failure
to yield the right-of-way;
• a plea of not guilty;
• a court order indicating that Schlehuber pleaded guilty to
DUI (second offense) and was sentenced to probation;
• an order of probation indicating the terms of the
probation, including license revocation, attendance at
Alcoholics Anonymous meetings, outpatient treatment,
and alcohol abstention;
• an affidavit of probation violation and motion for
revocation;
• a memorandum from the probation office alleging several
probation violations, including a new charge of driving
under revocation, failing to disclose pending sentences in
another county, failing to comply with court orders
(resulting in an active arrest warrant), failing to attend
20 Alcoholics Anonymous meetings, and failing to complete
outpatient treatment;
• a memorandum from the prosecutor indicating an intent
to file the probation violation and seek a warrant; and
• an order revoking Schlehuber’s probation and sentencing
him to jail for thirty days.
¶ 39 Schlehuber objected to the admission of the Nebraska record.
Initially, he asserted that the entire document was irrelevant
because it did not indicate the existence of a conviction. When the
court ruled there was a sufficient foundation to show the record
was more likely than not a judgment of conviction, Schlehuber
turned his focus to portions of the record that went beyond the
conviction. He argued that much of the record was irrelevant and
inadmissible under CRE 403 because it “list[ed] literally everything
else that ha[d] happened in the case,” including everything he had
been charged with. He specifically objected to the portion of the
record that mentioned his probation violation and revocation.
¶ 40 The district court overruled the objection and admitted the
record in its entirety. Given Schlehuber’s suggestion that the
record did not clearly establish a conviction, the court concluded
21 that the jury should be entitled to review the entire document “to
determine whether or not there is in fact a prior qualifying
conviction.” It ruled that the probation violation was relevant to
that question because probation necessarily suggests there has
been a conviction. The court also concluded that a limiting
instruction would adequately address any danger of unfair
prejudice by directing the jury that it could consider the record only
for determining whether or not there was a prior qualifying offense.
¶ 41 The district court then gave the jury the following limiting
instruction:
[Y]ou’re about to hear evidence regarding Mr. Schlehuber’s alleged prior convictions. You may only consider this evidence to decide whether the prosecution has proved beyond a reasonable doubt that Mr. Schlehuber has three or more prior qualifying convictions. You may not consider this evidence for any other purpose.
The court gave a similar limiting instruction after Schlehuber
testified about the prior convictions and at the end of trial.
B. Standard of Review and Applicable Law
¶ 42 The district court has broad discretion to determine the
admissibility of evidence based on its relevance, probative value,
22 and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. We
review evidentiary rulings for an abuse of discretion. People v.
Owens, 2024 CO 10, ¶ 105. A district court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair or
when it is based on an incorrect understanding of the law. Id.
¶ 43 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Irrelevant evidence is inadmissible. CRE
402. Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. CRE
403. In reviewing whether evidence should have been excluded
under CRE 403, we afford the evidence its maximum reasonable
probative value and the minimum unfair prejudice that might
reasonably be expected. People v. Acosta, 2014 COA 82, ¶ 58.
¶ 44 Evidence of other crimes or acts is not admissible “to prove a
person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” CRE 404(b)(1).
But such evidence is admissible for “almost any non-propensity
purpose.” Rojas v. People, 2022 CO 8, ¶ 28; see also CRE 404(b)(2).
23 Thus, evidence of extrinsic acts that are suggestive of bad character
is admissible if it is (1) logically relevant (2) to a material fact
(3) independent of the prohibited inference of the defendant’s bad
character, and (4) its probative value is not substantially
outweighed by the risk of unfair prejudice. Rojas, ¶¶ 27, 52.
¶ 45 When an evidentiary objection is preserved, we review the
erroneous admission of evidence for harmless error. People v.
Hines, 2021 COA 45, ¶ 40. Under this standard, we will reverse if
there is a “reasonable probability” that the error contributed to the
defendant’s conviction. People v. Vanderpauye, 2023 CO 42, ¶ 66.
¶ 46 We review unpreserved evidentiary claims for plain error,
meaning we will reverse only if the error was “obvious, substantial,
and ‘so undermined the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the judgment of conviction.’”
People v. Snelling, 2022 COA 116M, ¶ 33 (citation omitted).
C. CRE 403
¶ 47 The record of the Nebraska conviction itself was relevant and
admissible to prove the fact of Schlehuber’s prior DUI conviction —
an element of the charged offense — and Schlehuber does not
contend otherwise. See People v. Kembel, 2023 CO 5, ¶ 53. But
24 that does not mean the entire fourteen-page record should have
been admitted wholesale. See Carter v. People, 2017 CO 59M, ¶ 24
(noting that if an admissible recording “contains evidence of
uncharged crimes or otherwise inadmissible evidence, it must of
course be redacted before being admitted into evidence”); Martin v.
People, 738 P.2d 789, 795 (Colo. 1987) (holding that where the
defendant’s confinement was relevant but the nature of his offense
was not, the district court “should have admitted the mittimus with
the prejudicial information excised”). It is the portions of the record
that go beyond the fact of Schlehuber’s conviction that are at issue.
¶ 48 Given Schlehuber’s argument that the proffered exhibit did not
show a qualifying conviction, we agree with the district court that
certain portions of the exhibit beyond the record of conviction itself
were at least minimally relevant. For example, the criminal
complaint showed Schlehuber was charged with DUI; the order of
probation identified the charge for which probation was imposed as
DUI; the affidavit of probation violation stated that Schlehuber was
found guilty of DUI; and the probation violation allegations and
revocation order both identified the charge as DUI. All this evidence
made it more probable that Schlehuber had in fact been convicted
25 of DUI in that case. See People v. Morales, 2012 COA 2, ¶ 9 (“The
prosecution is generally entitled to prove the elements of its case
against a defendant by evidence of its own choice . . . .”).
¶ 49 We note that Schlehuber was incorrect in arguing that the
exhibit did not include the record of conviction. The court order in
the exhibit stated that Schlehuber had pleaded guilty to DUI, was
found guilty of DUI, and was sentenced to probation as a result.
This direct evidence of the prior conviction reduces the “‘marginal’
or ‘incremental’ probative value” of the other portions of the exhibit.
People v. Williams, 2020 CO 78, ¶ 14. But to the extent
Schlehuber’s initial objection caused the court to overstate the
significance of these other documents, Schlehuber invited any such
error by asserting that the record did not otherwise show a
conviction. See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine
of invited error prevents a party from complaining on appeal of an
error that he or she has invited or injected into the case . . . .”).
¶ 50 Nevertheless, we agree with Schlehuber that certain portions
of the record were not relevant. Among other things, those portions
included other (non-DUI) charges that had been dismissed, multiple
alleged probation violations, a subsequent charge of driving under
26 revocation, a reference to pending sentences in another county and
an active arrest warrant, a reference to probation violations in
another case, and a probation officer’s comment that Schlehuber
“has received multiple opportunities to engage in rehabilitative
efforts” but “continues to demonstrate an inability to appropriately
adopt a more conventional lifestyle and avoid legal conflicts.” None
of this evidence made it more or less probable that Schlehuber had
been convicted of DUI in the Nebraska case. See CRE 401.
¶ 51 Moreover, even if this evidence had some minimal probative
value, any such value was substantially outweighed by the danger
of unfair prejudice. CRE 403. Together, this evidence showed a
pattern of Schlehuber’s failure to comply with the law and, in
particular, his struggles with alcohol. Cf. People v. Hamilton, 2019
COA 101, ¶ 95 (“Evidence of a prior criminal conviction is generally
inadmissible because of its highly prejudicial effect.”). In a case
that turned on whether Schlehuber was under the influence of or
impaired by alcohol, the risk that the jury might improperly take
into account his prior alcohol-related issues was high. Thus, even
giving the evidence its maximum reasonable probative value and its
27 minimum reasonable unfairly prejudicial effect, the district court
abused its discretion by admitting the record in its entirety.
¶ 52 We nonetheless conclude that this error was harmless for
three reasons. First, the jury properly heard evidence that
Schlehuber had three prior DUI convictions — including
Schlehuber’s testimony that he “pleaded guilty [to each] because
[he] did it.” Those convictions themselves informed the jury that
Schlehuber had a history of alcohol-related convictions that was at
least as prejudicial as the acts described in the Nebraska record.
See People v. Carian, 2017 COA 106, ¶ 44 (holding that prior drug
offense “likely had minimal impact on the jury” when the jury was
already informed that the defendant had issues related to drugs).
Notably, the prosecution never mentioned any information
contained in the Nebraska record other than the DUI conviction.
¶ 53 Second, while the Nebraska record concerned Schlehuber’s
conduct in 2013 and 2014, Schlehuber’s other two DUI convictions
were from 2020 and 2021. These more recent convictions were
more indicative of his continued criminal conduct and problems
with alcohol at the time of the charged offense than his probation
violations and non-alcohol-related offenses nearly a decade earlier.
28 ¶ 54 Third, the district court instructed the jury — both
immediately after the Nebraska record was admitted and in its final
instructions — that it could only consider the evidence to decide
whether the prosecution had proved beyond a reasonable doubt
that Schlehuber had three or more prior qualifying convictions. See
id. at ¶ 45 (holding that error in admission of prior offense was
harmless where the court’s limiting instruction “mitigated any
potential prejudice that may have flowed from the admission of the
challenged evidence”). Although we do not go so far as to conclude
that such an instruction alone will always make the erroneous
admission of such evidence harmless, we generally presume that a
jury follows the district court’s instructions. Id.; see also Kembel,
¶ 49 (noting that the potential prejudice to a defendant “can be
largely neutralized through limiting jury instructions”).
¶ 55 Thus, although we agree with Schlehuber that the Nebraska
record contained extraneous information that should have been
redacted or otherwise excluded, we conclude that there is no
reasonable probability that the admission of that information
contributed to Schlehuber’s conviction. See Vanderpauye, ¶ 66.
29 D. CRE 404(b)
¶ 56 Schlehuber also contends that the admission of the Nebraska
record violated CRE 404(b) because it contained extrinsic evidence
of other acts. He did not object on this ground in the district court.
Rather, his counsel cited only “relevance, [CRE] 403, hearsay, and
. . . lack of foundation.” Given these stated bases for the objection,
counsel’s reference to “everything that Mr. Schlehuber was charged
with” was not sufficiently specific to alert the district court to a CRE
404(b) issue. See People v. Ujaama, 2012 COA 36, ¶ 37. We
therefore review this contention for plain error. Id. at ¶ 38.
¶ 57 Much of the CRE 404(b) analysis dovetails with the analysis
above. To the extent the Nebraska record was offered to prove the
fact of Schlehuber’s prior DUI conviction, it was intrinsic to the
charged offense, and its relevance was independent of any inference
about Schlehuber’s character. See Rojas, ¶¶ 27, 52. To the extent
the record included evidence of other acts beyond the prior DUI
30 conviction, that evidence was extrinsic and was not “logically
relevant . . . to [any] material fact.” Id. at ¶¶ 27, 52.6
¶ 58 But even assuming the admission of such evidence was
obvious error under CRE 404(b), it does not constitute plain error
for the reasons above. Because there is no reasonable probability
that the improperly admitted evidence contributed to Schlehuber’s
conviction, it did not undermine the fundamental fairness of the
trial or cast serious doubt on the reliability of the conviction. See
Hagos v. People, 2012 CO 63, ¶ 14 (“[T]he error must impair the
reliability of the judgment of conviction to a greater degree [under
plain error] than under harmless error to warrant reversal.”).
IV. Disposition
¶ 59 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE SULLIVAN concur.
6 We reject the People’s attempt to avoid CRE 404(b) by arguing that
the other acts referenced in the Nebraska record were intrinsic to the Nebraska DUI. The question is whether the acts are intrinsic or extrinsic to the charged offense. Rojas v. People, 2022 CO 8, ¶ 52.