United States District Court, D. Colorado
OPINION AND ORDER DENYING APPLICATION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
S. Krieger Chief Judge
matter is before the Court on the Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1,
filed pro se by Applicant Amadeus J. Harlan. The
Application challenges the validity of Applicant's
criminal conviction in No. 2008CR1681 in the Jefferson County
District Court in Golden, Colorado. After reviewing the
Application, the June 11, 2018 Answer, the September 18, 2018
Reply, the December 24, 2018 Addendum, and the state court
record, the Court FINDS and CONCLUDES that the Application
should be denied and the case dismissed with prejudice.
Court has determined that the Application can be resolved on
the parties' briefing and that an evidentiary hearing is
not necessary. Applicant's Request for an Evidentiary
Hearing, ECF No. 30, therefore, will be denied. Furthermore,
under Rule 8(c) of the Rules Governing Section 2254 Cases in
the United States District Courts only when an evidentiary
hearing is warranted is a judge required to appoint an
attorney to represent a petitioner who qualifies to have
counsel appointed under 18 U.S.C. § 3006A.”
Without a need for a hearing, Applicant's motions for
appointment of counsel, ECF Nos. 29 and 33, will be denied as
moot. Swazo v. Wyo. Dep't of Corr. State Penitentiary
Warden, 23 F.3d 332, 333 (10th Cir. 1994) (Decisions
regarding appointment of counsel in habeas corpus proceedings
generally are “left to the court's
Court first revisits the factual background set forth in the
Colorado Court of Appeals (CCA) August 4, 2016 Opinion, which
affirmed Applicant's conviction and sentence.
In the summer of 2007, defendant met R.S. when he and R.S.
worked in the same office building. When they met, defendant
claimed to be a former Denver Broncos player and told R.S.
that he was starting his own company. He told R.S. that he
wanted her to work for him, so R.S. filled out a job
application and gave defendant a photocopy of her
According to R.S., she and defendant also flirted and,
occasionally, hugged and kissed. Although R.S. denied being
in an “intimate relationship” “in the
traditional sense, ” she did admit that, on one
occasion, she had had sex with defendant in a car parked in a
Later, in fall 2007, defendant went to Empire Lakewood Nissan
(the Nissan dealership) to purchase a Nissan Maxima. There,
defendant told an employee that he was a former Denver
Broncos player, showed a tattoo of a Super Bowl emblem on his
arm, and said that he wanted to buy the Maxima for a
girlfriend. Defendant paid for the car with a check.
Within a short time, however, defendant's check bounced.
At that point, the Nissan dealership's finance director
contacted defendant to figure out how he wanted to pay for
the Maxima. Defendant told the finance director that he would
finance the vehicle in his girlfriend's name; that way,
when he paid the loan balance in cash (once funds became
available), the Maxima would be in his girlfriend's name.
To complete the loan transaction, defendant had a Nissan
dealership employee follow him to R.S.'s office building.
When they arrived, defendant introduced the employee to a
woman. After the introduction, the employee told the woman
that he had some documents that she needed to sign, but he
did not tell her that the paperwork was for purposes of
financing a car. Defendant then said that he wanted to speak
with the woman alone, so he took the paperwork from the
employee, and he and the woman walked to the back of the
When the two returned, defendant gave the Nissan dealership
employee the signed loan documents.
In December 2007, R.S.'s fiancé received a call
from a bank about an unpaid loan on a Nissan Maxima. R.S.
soon realized that defendant had used her
information-obtained as part of R.S.'s job application
process-to-obtain a loan to purchase the Nissan Maxima. She
also learned that he used her information to obtain a loan to
purchase a Chevy Avalanche in Arapahoe County (the Arapahoe
R.S. later filed a report with the police. She told an
officer that she had given defendant her information as part
of filling out a job application. However, she did not tell
the officer that she had had sex with defendant.
Defendant was arrested and, in connection with the Nissan
Maxima purchase (the transaction at issue in this case),
charged with aggravated motor vehicle theft, section
18-4-409(2), (3)(b), C.R.S. 2015; identity theft, Ch. 326,
sec. 1, § 18-5-902(1)(a), (f), 2009 Colo. Sess. Laws
1737; and nine habitual criminal counts. Defendant was also
charged in connection with the Arapahoe County incident, but
those charges were dismissed by the Arapaho County district
attorney's office after a preliminary hearing.
At trial, defendant's theory of defense was that R.S. had
agreed to finance the Nissan Maxima and had given him
permission to sign her name on the loan documents. He
contended that R.S. had fabricated her allegations because
her fiancé would otherwise have learned that she had
been having an affair with defendant.
At the close of evidence, defendant requested that the court
instruct the jury on two lesser nonincluded offenses:
forgery, section 18-5-102, C.R.S. 2015, and criminal
impersonation, section 18-5-113, C.R.S. 2015.
The jury convicted defendant of the charged offenses and the
lesser nonincluded offenses he requested. The trial court
later found him guilty of the habitual criminal counts. The
court sentenced defendant to forty-eight years in prison on
the aggravated motor vehicle theft count, with all other
sentences to run concurrently.
The People of the State of Colo. v. Amadeus Harlan,
No. 15CA0101, 1-4 (Colo.App. Aug. 4, 2016); ECF No. 1-1 at
initiated a 28U.S.C. § 2254 action in this Court on
January 10, 2018. ECF No. 1. Magistrate Judge Gordon P.
Gallagher directed Respondents to file a Pre-Answer Response
and to address the affirmative defenses of timeliness under
28 U.S.C. § 2244(d), and exhaustion of state court
remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents
intended to raise either or both in this action. ECF No. 5.
filed a Pre-Answer Response, ECF No. 12, on February 1, 2018.
Applicant filed a Reply to the Pre-Answer Response, ECF No.
14, on February 12, 2018. On April 23, 2018, the Court
entered an Order for Answer in Part, Dismissal in Part, and
State Court Record, ECF No. 22. The April 23 Order dismissed
Claim Six and the rape claim in Claim Three and directed
Respondents to file an answer that addresses the remaining
claims in Claim Three and Claims One, Two, Four, Five, Seven,
and Eight. ECF No. 22 at 13.
remaining claims for review on the merits are as follows:
1) The trial court violated Applicant's due process
rights when it admitted evidence regarding a separate
criminal case that had been filed against Applicant but
ultimately was dismissed;
2) The trial court violated Applicant's due process
rights when it allowed the prosecution to present
inadmissible prior evidence;
3) The prosecution committed misconduct when it used language
that inflamed the passions and prejudices of the jury,
utilized improper propensity arguments, and misstated the
evidence in closing arguments;
4) The trial court violated Applicant's due process
rights when it allowed the prosecution to introduce
inadmissible hearsay that negated a fact that was essential
to Applicant's defense;
5) The trial court's cumulative errors denied Applicant
his right to a fair trial under the state and federal
7) The trial court violated Applicant's due process
rights when it precluded defense counsel from contacting the
jurors after the trial to obtain evidence that is clearly
permissible under CRE 606(b); and
8) Applicant was entitled to a jury trial on the habitual
ECF No. 1 at 2-36.
filed an Answer, ECF No. 31, on June 11, 2018, addressing the
remaining claims on the merits. Applicant filed a Reply, ECF
No. 32, on June 25, 2018, and an Addendum to his Response,
ECF No. 34, on December 24, 2018. After reviewing the
Application, Respondents' Answer, Applicants Reply and
Addendum, and the state court record, the Court concludes
that the Application should be dismissed with prejudice for
the following reasons.
STANDARDS OF REVIEW
Pro Se Standard of Review
Applicant is proceeding pro se. The Court,
therefore, reviews the Application liberally and holds the
pleading “to a less stringent standard than those
drafted by attorneys.” Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see also Haines v. Kerner, 404 U.S. 519,
520-21 (1972). However, a pro se litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (citations omitted). A court may not
assume that an applicant can prove facts that have not been
alleged, or that a respondent has violated laws in ways that
an applicant has not alleged. Associated Gen. Contractors
of Cal., Inc. v. Cal. State Council of Carpenters, 459
U.S. 519, 526 (1983). An applicant's pro se
status does not entitle him to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th
28 U.S.C. § 2254
28 U.S.C. § 2254(d) provides that a writ of habeas
corpus may not be issued with respect to any claim that was
adjudicated on the merits in state court unless the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). Applicant bears the burden of proof
under § 2254(d). See Woodford v. Visciotti, 537
U.S. 19, 25 (2002) (per curiam).
may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for
rejecting the claim. Harrington v. Richter, 562 U.S.
86, 98 (2011). In particular, “determining whether a
state court's decision resulted from an unreasonable
legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court's
reasoning.” Id. (collecting cases). Thus,
“[w]hen a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.” Id. at
99. “Where there has been one reasoned state judgment
rejecting a federal claim, ” federal habeas courts
should presume that “later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same
ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803
“[w]here a state court's decision is unaccompanied
by an explanation, the habeas petitioner's burden still
must be met by showing there was no reasonable basis for the
state court to deny relief.” Richter. 562 U.S.
at 98. In other words, the Court “owe[s] deference to
the state court's result, even if its reasoning
is not expressly stated.” Aycox v. Lytle, 196
F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court
“must uphold the state court's summary decision
unless [the Court's] independent review of the record and
pertinent federal law persuades [it] that its result
contravenes or unreasonably applies clearly established
federal law, or is based on an unreasonable determination of
the facts in light of the evidence presented.”
Id. at 1178. “This 'independent
review' should be distinguished from a full de novo
review of the petitioner's claims.” Id.
Court reviews claims of legal error and mixed questions of
law and fact pursuant to 28 U.S.C. § 2254(d)(1). See
Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question a court must answer under §
2254(d)(1) is whether Applicant seeks to apply a rule of law
that was clearly established by the Supreme Court at the time
his conviction became final. See Williams v. Taylor,
529 U.S. 362, 390 (2000). Clearly established federal law
“refers to the holdings, as opposed to the dicta, of
[the Supreme] Court's decisions as of the time of the
relevant state-court decision.” Id. at 412.
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar
to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008)
(citations omitted). If there is no clearly established
federal law, that is the end of my inquiry pursuant to §
2254(d)(1). See Id. at 1018.
clearly established rule of federal law is implicated, the
Court must determine whether the state court's decision
was contrary to or an unreasonable application of that
clearly established rule of federal law. See
Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) the state court applies a rule that
contradicts the governing law set forth in Supreme Court
cases; or (b) the state court confronts a set of facts that
are materially indistinguishable from a decision of the
Supreme Court and nevertheless arrives at a result different
from [that] precedent. Maynard [v. Boone],
468 F.3d [665, ] 669 [(10th Cir. 2006)] (internal quotation
marks and brackets omitted) (quoting Williams, 529
U.S. at 405, 120 S.Ct. 1495). The word contrary is commonly
understood to mean diametrically different, opposite in
character or nature, or mutually opposed. Williams,
529 U.S. at 405, 120 S.Ct. 1495 (citation omitted).
A state court decision involves an unreasonable application
of clearly established federal law when it identifies the
correct governing legal rule from Supreme Court cases, but
unreasonably applies it to the facts. Id. at 407-08,
120 S.Ct. 1495 . . . .
House, 527 F.3d at 1018. (internal quotation marks
Court's inquiry pursuant to the “unreasonable
application” clause is an objective inquiry. See
Williams, 529 U.S. at 409-10. “[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather that application must also
be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable' when most
reasonable jurists exercising their independent judgment
would conclude the state court misapplied Supreme Court
law.” Maynard, 468 F.3d at 671. The Supreme
Court has also stated:
[E]valuating whether a rule application was unreasonable
requires considering the rule's specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations. Ibid. [I]t
is not an unreasonable application of clearly established
Federal law for a state court to decline to apply a specific
legal rule that has not been squarely established by [the
Richter, 562 U.S. at 101 (internal quotation marks
omitted). In conducting this analysis, the Court “must
determine what arguments or theories supported or . . . could
have supported[ ] the state court's decision” and
then “ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id. at 102. In addition,
“review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011).
this standard, “only the most serious misapplications
of Supreme Court precedent will be a basis for relief under
§ 2254.” Maynard, 468 F.3d at 671;
see also Richter, 562 U.S. at 102 (stating that
Aeven a strong case for relief does not mean the state
court's contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 562 U.S. at 103.
Court reviews claims asserting factual errors pursuant to 28
U.S.C. § 2254(d)(2). See Romano v. Gibson, 278
F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable
determination of the facts in light of the evidence presented
to the state court. Pursuant to § 2254(e)(1), the Court
must presume that the state court's factual
determinations are correct and Applicant bears the burden of
rebutting the presumption by clear and convincing evidence.
“The standard is demanding but not insatiable . . .
[because] ‘[d]eference does not by definition preclude
relief.' ” Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
the analysis is not complete “[e]ven if the state court
decision was contrary to, or involved an unreasonable
application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.
2006). “Unless the error is a structural defect in the
trial that defies harmless-error analysis, [the Court] must
apply the harmless error standard of Brecht v.
Abrahamson, 507 U.S. 619 (1993) . . . .”
Id.; see also Fry v. Pliler, 551 U.S. 112,
121-22 (2007) (providing that a federal court must conduct
harmless error analysis under Brecht anytime it
finds constitutional error in a state court proceeding
regardless of whether the state court found error or
conducted harmless error review). Under Brecht, a
constitutional error does not warrant habeas relief unless
the Court concludes it “had substantial and injurious
effect” on the jury's verdict. Brecht, 507
U.S. at 637. “[A] ‘substantial and injurious
effect' exists when the court finds itself in
‘grave doubt' about the effect of the error on the
jury's verdict.” Bland, 459 F.3d at 1009
(citing O'Neal v. McAninch, 513 U.S. 432, 435
(1995)). “Grave doubt” exists where “the
matter is so evenly balanced that [the Court is] in virtual
equipoise as to the harmlessness of the error.”
O'Neal, 513 U.S. at 435.
Court makes this harmless error determination based upon a
thorough review of the state court record. See Herrera v.
Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
“In sum, a prisoner who seeks federal habeas corpus
relief must satisfy Brecht, and if the state court
adjudicated his claim on the merits, the Brecht test
subsumes the limitations imposed by AEDPA.” Davis
v. Ayala, __ U.S. __, 135 S.Ct. 2187, 2199 (2015)
(citing Fry, 551 U.S. at 119-120).
claim was not adjudicated on the merits in state court, and
if the claim also is not procedurally barred, the Court must
review the claim de novo and the deferential standards of
§ 2254(d) do not apply. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004).
MERITS OF APPLICANT'S REMAINING CLAIMS
Claim One/ Trial Court Admission of Evidence Regarding
Criminal Charge without Informing Jury that Charge was
Claim One, Applicant asserts that his due process rights were
violated when the trial court admitted evidence of criminal
allegations against him in a previous criminal case but
failed to inform the jury that the allegations ultimately
were dismissed. ECF No. 1 at 5. In support of this claim,
Applicant asserts that, long before the trial in the criminal
case at issue in this action, the Arapahoe County District
Attorney dismissed charges against Applicant that he had used
the victim's financial information to purchase a truck in
Arapahoe County, Colorado. ECF No. 1 at 6. Applicant concedes
though that before the trial in the Jefferson County case
both the prosecution and defense agreed that the Arapahoe
charges would be admissible as “res gestae,
” but no agreement was reached regarding the limitation
instruction. Id. Applicant further asserts that his
due process rights were violated because the trial court
denied the defense's request to poll the jury regarding
the Arapahoe County criminal charges. Id. at 7.
Applicant also asserts that a trial court violates the Due
Process Clause of the United States and Colorado
constitutions, when it admits evidence of a defendant's
prior crimes under Colo. R. Evid. 404(b) but does not allow
the jury to be informed that the defendant was acquitted of
the prior crime. Id.
addressed Claim One as follows:
Before trial, the parties agreed that the facts of the
Arapahoe County incident were admissible as res gestae. On
the first day of trial, the People filed a motion in limine
to exclude any evidence that the Arapahoe County district
attorney's office filed and later dismissed charges
stemming from the Arapahoe County incident (the dismissal
evidence). The People argued that such evidence was
irrelevant because there could have been a number of reasons
why the prosecutor may have chosen to dismiss the charges in
Defense counsel objected to the People's motion. He
argued that at the preliminary hearing in the Arapahoe County
case, certain of R.S.'s statements “were shown to
be false, and . . . after that information came to light, a
criminal prosecution that mirrors ours, based on the same
series of reports, was dismissed outright.” Thus, the
dismissal evidence was relevant to the jury's
“determination as to the credibility of [R.S.'s]
After reviewing Kinney v. People, 187 P.3d 548
(Colo. 2008), the trial court granted the People's
motion. It concluded that the dismissal evidence was
irrelevant because neither the parties nor the court knew why
the charges had been dismissed. The court added, “[I]f
we went forward with such a showing, we would run into facts
and circumstances which would be so difficult to deal with:
Why were they dismissed? Would we have an exploration of that
and for what relevance?” The court finished by noting
that “[t]his is res gestae evidence. We don't talk
about charges that came out of res gestae evidence. We are
simply setting the table for the charges that are to
B. Standard of Review
We review for an abuse of discretion the trial court's
decision excluding the dismissal evidence. Id. at
557. A trial court abuses its discretion only if its decision
is manifestly arbitrary, unreasonable, or unfair, or is based
on a misapprehension or misunderstanding of the law. See,
e.g., People v. Manyik, 2016 COA 42, ¶ 65.
Defendant preserved his pretrial contention that the
dismissal evidence should have been admitted. Accordingly, in
the event the trial court erred, reversal is required unless
the error was harmless. People v. Trujillo, 2014 COA
72, ¶ 88.
C. Legal Principles
In Kinney, the supreme court considered the
circumstances under which a “defendant is entitled to
introduce evidence or have the jury instructed by the trial
court that he or she was acquitted of [a] prior act”
that was introduced pursuant to CRE 404(b). 187 P.3d at
The supreme court held that it is appropriate to allow the
introduction of such evidence when (1) “the testimony
or evidence presented at trial about the prior act indicates
that the jury has likely learned or concluded that the
defendant was tried for the prior act” and (2) the jury
“may be speculating as to the defendant's guilt or
innocence in that prior trial.” Id. at 557.
There is no per se rule requiring or barring the introduction
of evidence of an acquittal; rather, trial courts must make
the determination whether to admit such evidence on a
case-by-case basis. Id.
Turning to the facts of Kinney, at trial
• the jury heard “no fewer than twenty-five
different exchanges about witnesses' testimony at prior
• “the jury . . . heard references to a search
warrant for multiple sexual assaults by the officer
investigating both [of] the [other] cases, implying that both
cases were being pursued criminally”;
• the victims from the other cases “testified to
having interactions with officers investigating their claims,
including [one of the victim's] in-depth discussion of
her physical examination by an officer and physician”;
• as a result of the multitude of references to the
prior proceeding, “the jury during deliberations sent
out a note requesting ‘previous trial transcripts.'
Id. at 558.
Based on these facts, it was clear from the record that the
jury was speculating as to whether the defendant had been
charged criminally with the other acts. In light of that
speculation, the supreme court concluded that, under the
circumstances, the trial “court's continued refusal
to inform the jury about [the defendant's] acquittals in
the prior cases was an abuse of its discretion.”
At the outset, we note that it is not clear that
Kinney applies here. First, defendant was not
acquitted of the charges stemming from the Arapahoe County
incident. Instead, the prosecution dismissed the charges.
Second, the evidence pertaining to the Arapahoe County
incident was introduced as res gestae, rather than as other
acts evidence under CRE 404(b).
Nonetheless, assuming that Kinney's reach
extends to the circumstances in this case, based on our
review of the record, we discern no abuse of discretion by
the trial court.
It is important to note that the court made its ruling before
the start of trial. At that time, there had been no witness
testimony referencing either the Arapahoe County incident or
any proceedings connected therewith. Nor did defense counsel
argue that the jury would likely speculate as to whether
defendant was charged with, or convicted of, the conduct
alleged in the Arapahoe County incident. (footnote omitted).
And, as the court noted in granting the People's motion,
the Arapahoe County incident was “res gestae evidence,
” and “[w]e don't talk about charges that
came out of res gestae evidence.” Rather, that evidence
was being offered “simply [to] set[ ] the table for the
charges that [we]re to come.” Thus, given the limited
purpose for which the Arapahoe County incident was offered,
it was unlikely that the evidence at trial would unfold in
such a way that the jury would (1) learn or conclude that
defendant was charged in connection with the Arapahoe County
incident and (2) speculate whether defendant was found guilty
of such charges.
Furthermore, the relevancy of the dismissal evidence was
speculative. In Kinney, the supreme court held that
evidence of an acquittal on charges stemming from other acts
evidence is relevant because it “make[s] it less
probable that the prior act occurred as the testifying
witness has alleged that it did.” Id. at 557.
But here, as the trial court observed, there are a number of
reasons why the Arapahoe County prosecutor may have exercised
his or her discretion in dismissing the charges arising out
of the Arapahoe County incident. And the trial court had no
evidence before it that the prosecutor did so based on
alleged false statements by R.S. Thus, contrary to
defendant's assertion on appeal, the dismissal evidence
had no tendency to make it more likely that R.S. made false
allegations in connection with the Arapahoe County incident.
Consequently, we discern no abuse of discretion by the trial
court in excluding the dismissal evidence. See id.
Lastly, to the extent that defendant argues on appeal that,
under Kinney, the court should have allowed the
dismissal evidence based on later evidence at trial, he did
not ask the court to reconsider its prior ruling, nor did he
request an instruction informing the jury that the charges
had been dismissed. Nonetheless, even assuming defendant
properly preserved this issue, we would find no error.
Defendant contends that “it was clear to the jury that
there was a prosecution” stemming from the Arapahoe
County incident because (1) the jury heard evidence that R.S.
reported the Arapahoe County incident to the police; (2) the
jury heard evidence that the report led to a police
investigation; and (3) during closing argument, the
prosecutor said “[t]he Avalanche, that's not our
charge, here, the Arapahoe [C]ounty [incident].” But
here, unlike in Kinney, there is no clear indication
in the record that the jury was speculating whether defendant
was charged for his conduct in the Arapahoe County incident
and whether a jury convicted him for such conduct. Indeed,
(1) the incident was admitted only as res gestae, so the
testimony at trial about that incident was much more limited
than the testimony about the other acts in Kinney;
(2) the jury never requested transcripts from the prior
hearing; and (3) the prosecutor's use of the word
“charge” in closing argument was an isolated
reference and appeared to refer to the charge in this case.
Accordingly, even assuming that defendant properly preserved
this issue, we conclude that the trial court did not abuse