County District Court No. 14CR884 Honorable Patrick D.
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law LLC, Sean Connelly, Denver, Colorado, for
1 Defendant, Coleman Backstrom Stewart, appeals the judgment
of conviction entered on jury verdicts finding him guilty of
felony menacing and misdemeanor obstructing a peace officer.
We conclude that there were a number of errors in the trial
proceedings - two of them standing alone might serve as the
basis for reversal, but collectively they clearly require
that we reverse the conviction and remand for a new trial.
2 When an impetuous youth runs from police, good things
rarely result. This case is just such a circumstance.
3 Inebriated, defendant took a cab from a friend's house
and refused to pay his $4.85 cab fare. Rather than deliver
defendant to his desired destination, the cab driver,
apparently suspecting that defendant would not pay his fare,
stopped near a police station. Defendant jumped from the cab
and ran, with the cab driver in pursuit. The cab driver
alerted a nearby police officer who shouted at defendant and
also gave chase. Defendant ran to his apartment and then
appeared behind his window blinds with a plastic BB gun.
Officers, who had entered defendant's gated patio, opened
fire, and defendant suffered two gunshot wounds.
4 The evidence at trial showed that defendant's apartment
was surrounded by a six-foot privacy fence that was locked.
The apartment air conditioner was running at a high noise
level. The fence enclosed defendant's private patio and
was not accessible to other residents of the building. At
least one police officer scaled the fence and then opened the
gate for remaining officers to enter the patio. It was after
the officers breached the fence that they saw defendant with
the BB gun and, believing the gun to be real, commenced
5 Prior to trial, defendant filed a motion to dismiss the
charges against him on grounds that "outrageous
government conduct" in violation of his Fourth and Fifth
Amendment rights barred prosecution. U.S. Const. amend. IV;
U.S. Const. amend. V. The motion also sought to suppress all
evidence obtained by the police after their illegal entry
onto his property. The trial court denied the motion without
holding a hearing or issuing a detailed order.
6 A jury convicted defendant of felony menacing and
obstructing a peace officer. The trial court sentenced
defendant to probation.
7 All relevant evidence is admissible unless otherwise
prohibited by law. CRE 402. "'Relevant evidence'
means evidence having 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.
8 When a defendant objects to the admission of evidence, we
review for harmless error. People v. Garcia, 28 P.3d
340, 344 (Colo. 2001). If the error is not one of
constitutional dimension, the defendant bears the burden of
showing prejudice from the error. People v. Vigil,
718 P.2d 496, 500 (Colo. 1986); People v. Casias,
2012 COA 117, ¶ 60. We will reverse if the error
"substantially influenced the verdict or affected the
fairness of the trial proceedings." Tevlin v.
People, 715 P.2d 338, 341-42 (Colo. 1986).
Refreshing Recollection Evidence
9 Whether defendant was aware that a police officer was
chasing him after he jumped from the cab was hotly disputed.
The prosecutor sought to establish that the officer had
yelled at defendant and identified himself as a police
officer. The prosecution's first witness had seen some of
the chase, but she had only a vague recollection of events
when she was called to the witness stand for direct
examination. Rather than asking an open-ended question, the
prosecutor asked: "And if you told the officer at the
time that you heard 'stop police' would that be
accurate?" Defense counsel objected to the leading
question, but the trial court overruled the objection because
it was "being used to refresh recollection."
Defense counsel sought leave to approach the bench to make
further argument, but the trial court denied the request. The
witness then responded: "Yes, I think anything I said to
him would have been accurate."
10 The prosecutor's question placed words in the
witness's mouth - words that were critical in evaluating
the defense that defendant was not aware he was being chased
by a police officer. CRE 611(c) prohibits leading questions
on direct examination, and CRE 612 permits refreshing
recollection only in limited circumstances and following a
11 The court's ruling was in error not only because the
prosecution was leading the witness but also because it
violated CRE 612. That rule deals with situations where a
witness indicates a lack of recollection and has his or her
recollection refreshed with a writing. No writing was
introduced in this instance. Nor was this question proper
impeachment because no foundation was laid. See CRE
613 (stating that denial or failure to remember the prior
statement is a prerequisite for the introduction of extrinsic
evidence to prove a prior inconsistent statement); see
also § 16-10-201, C.R.S. 2016. Here, the prosecutor
did not attempt to call the witness's attention to a
prior inconsistent statement. Instead, the prosecutor simply
told the witness what the prosecutor wanted to prove.
12 Under circumstances where defendant's awareness of the
presence of police was both disputed and pivotal to his
defense, we cannot conclude that this error was without
prejudice. The witness's answer could easily give a jury
the impression that defendant was aware from the outset that
he was being chased by police. Furthermore, although defense
counsel was able to elicit from the witness during
cross-examination that she did not in fact tell the
investigator she had heard the officer yell "stop
police, " the prosecutor nevertheless referenced this
statement as though it was a proven fact multiple times
13 And we do not agree that evidence of defendant's
menacing was overwhelming. His appearance behind blinds at
the window with his BB gun was fleeting, and the jury could
have believed that he was not intending to menace the police
but instead he was in fear of the cab driver.
14 But, on balance, although we conclude that this error was
prejudicial, we cannot conclude that it, standing alone,
"substantially influenced the verdict or affected the
fairness of the trial proceedings." Tevlin, 715
P.2d at 341-42. Thus, it is harmless in the sense that this
error, in isolation, does not require reversal, although it
substantially contributes to the cumulative error
determination discussed in Part V below.
15 Defendant objected to the introduction of evidence of a
2010 incident in Kansas, where he hid from police under a
parked car, as improper character evidence. The trial court
initially agreed the evidence should be excluded unless
defendant "were to testify that he did not know police
were after him or trying to contact him."
16 Defendant did not testify at trial, but the court ruled
that he had opened the door to this evidence by suggesting
through argument and examination of witnesses that he did not
knowingly menace police because he was unaware that police
were on his patio. Thus, the court admitted the evidence for
the limited purpose of rebutting "any allegation of
accident or mistake" on the part of defendant. In
rebuttal, the People introduced the testimony of two police
officers from Kansas who found defendant hiding under a
parked car after responding to a report of possible car
17 On appeal the People contend this evidence does not
implicate CRE 404(b) because it was "admitted to show
that [defendant] had previous experience with law
enforcement, " "not . . . to show that, because
[defendant] hid from an officer on a previous occasion, he
acted in conformity with that character in this case in
knowingly resisting arrest." We disagree.
18 CRE 404(b) addresses evidence of "other crimes,
wrongs, or acts." The Kansas incident several years
prior to the charges in this case is clearly evidence of
other crimes, wrongs, or acts. Indeed, during trial the
prosecutor, defense counsel, and the trial court all agreed
this evidence implicated CRE 404(b).
19 Evidence of prior acts is admissible if the acts (1)
relate to a material fact; (2) are logically relevant; (3)
have a logical relevance "independent of the
intermediate inference, prohibited by CRE 404(b), that the
defendant has a bad character" and committed the crime
charged because he acted in conformity with that bad
character; and (4) have a probative value that is not
substantially outweighed by the danger of unfair prejudice.
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
20 We review a trial court's decision to admit other acts
evidence for an abuse of discretion. People v.
Harris, 2015 COA 53, ¶ 14. "CRE 404(b) does
not always require similarity between a defendant's prior
act and the charged offense." Casias, ¶ 46
(citing Yusem v. People, 210 P.3d 458, 467 (Colo.
2009)). But when proving lack of accident or mistake,
"[t]he uncharged act should closely parallel the charged
act, " and "[i]f the acts are similar in material
respects, the similarity justifies the admission of the acts
to disprove innocent intent." Id. (alterations
in original) (quoting 1 Edward J. Imwinkelried, Uncharged
Misconduct Evidence § 5:08, at 25 (2009));
accord Harris, ¶ 24.
21 Here, the evidence related to the material fact of
defendant's mens rea. See Casias, ¶ 36
("Other bad acts evidence is admissible to prove a
defendant's knowledge . . . when . . . the other bad acts
tend to prove the requisite knowledge by virtue of the
doctrine of chances."). Yet the evidence had little
logical relevance to the material fact at issue; that is, the
fact that defendant hid from police on a prior occasion did
not make it more or less likely that he knew police were
chasing him on this occasion.
22 But even if we were to conclude that this evidence has
slight logical relevance - "that [it] has any
tendency to make the existence of the material fact more or
less probable than without the evidence, "
Yusem, 210 P.3d at 464-65 - because defendant's
prior contact with police may make it more probable he knew
he was dealing with police in this instance, we are
unpersuaded that such relevance is independent of the
inference prohibited by CRE 404(b).
23 Indeed, the prosecutor did not state a precise evidentiary
explanation of how the 2010 incident proved defendant's
mens rea in this case - apart from his propensity to hide
from the police. A jury could not reasonably conclude that
defendant was more likely to know he was being chased by
police in this case without relying on the inference that he
hid from police in the past and so he is likely to hide from
them again. This is the very type of impermissible inference
prohibited by CRE 404(b). See Yusem, 210 P.3d at
24 Nor can we conclude that this error was harmless.
Propensity evidence always has a potential for unfair
prejudice. Perez v. People, 2015 CO 45, ¶ 28.
The unfair prejudice to defendant was not outweighed by any
probative value we are able to discern in the 2010 incident.
Indeed, in our view, that evidence was irrelevant to any
issue at trial other than the habit and character of
defendant. Because defendant contended that he was unaware
that he was disobeying officers, this prior incident
certainly presented an opportunity for the jury to believe
that defendant was aware of the pursuing police here and
sought to hide from them. The prosecutors' closing
arguments highlighted the 2010 evidence, urging the jurors to
use it to infer that defendant knew the police were outside
the apartment when he appeared at the window with his BB gun.
One prosecutor went so far as to say in closing that the 2010
incident proved that defendant "knew" the officers
were looking for him because "he's run before."
We conclude that the error prejudiced defendant and affected
the fairness of the proceedings. Although this would likely
be a sufficient basis for reversal, when it is considered in
the context of the other errors we perceive, as we hereafter
conclude, they collectively require reversal.
Jury Instruction Error
25 Over defendant's objection, the trial court gave the
jury an instruction stating: "An officer may pursue a
fleeing suspect even in to that person's home."
26 "A trial court must correctly instruct the jury on
all matters of law applicable to the case." People
v. Mendenhall, 2015 COA 107M, ¶ 14. "We review
de novo whether instructions accurately informed the jury of
the law." People v. Garcia, 2017 COA 1, ¶
7. "[C]ontentions of instructional error are preserved
when a party objects to an instruction or requests a specific
additional or alternative instruction."
Mendenhall, ¶ 21. Preserved instructional
errors that do not implicate constitutional rights are
reviewed for harmless error. People v. Castillo,
2014 COA 140M, ¶ 24 (cert. granted Nov. 23,
2015). Such an error, however, does not require reversal if
we can determine that there is no reasonable probability that
it contributed to the jury's guilty verdict.
Krutsinger v. People, 219 P.3d 1054, 1063 (Colo.
27 "[I]t is error for a court to instruct the jury in a
manner that invites confusion." People v.
Stellabotte, 2016 COA 106, ¶ 25 (quoting
Steward Software Co. v. Kopcho, 275 P.3d 702, 711
(Colo.App. 2010)) (cert. granted Feb. 6, 2017). And
"[an] instruction . . . should not assume facts not
supported in some manner by the record." People v.
Tenneson, 788 P.2d 786, 799 (Colo. 1990).
28 There are three situations in which exigent circumstances
justify warrantless entry onto private property:
(1) the police are engaged in a "hot pursuit" of a
fleeing suspect; (2) there is a risk of immediate destruction
of evidence; or (3) there is a colorable claim of emergency
threatening the life or safety of another. The scope of the
permissible intrusion is determined by the exigency
justifying the initiation of the warrantless entry.
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
29 The People argue on appeal that the instruction correctly
stated the law, but they cite to a Utah case to support the
instruction. See State v. Hamilton, 710 P.2d 174,
175 (Utah 1985) (A warrantless entry was justified where an
officer "was literally in 'hot pursuit' of a
person who had been observed committing an offense, albeit a
minor one."). During oral argument, the People argued
that the instruction was correct because it contained the
term "may" and therefore, according to the ...