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Harlan v. Dauffenbach

United States District Court, D. Colorado

February 19, 2019

AMADEUS HARLAN, Applicant,
v.
WARDEN SCOTT DAUFFENBACH, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          OPINION AND ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

          Marcia S. Krieger Chief Judge

         This 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.

         The 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 discretion.”).

         I. BACKGROUND

         The 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 driver's license.
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 parking garage.
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 office space.
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 County incident).
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 3-6.

         Applicant 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.

         Respondents 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.

         The 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 constitutions;
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 criminal charges.

ECF No. 1 at 2-36.

         Respondents 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.

         II. STANDARDS OF REVIEW

         A. 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 Cir. 2002).

         B. 28 U.S.C. § 2254

         Title 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 court adjudication:

(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; or
(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).

         A claim 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 (1991).

         Even “[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.

         The 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. Furthermore,

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.

         If a 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 omitted).

         The 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 Supreme] Court.

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).

         Under 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.

         The 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)).

         Finally, 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.

         The 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).

         If a 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).

         III. MERITS OF APPLICANT'S REMAINING CLAIMS

         A. Claim One/ Trial Court Admission of Evidence Regarding Criminal Charge without Informing Jury that Charge was Dismissed

         In 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.

         The CCA 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 that case.
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] statements.”
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 come.”
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 554-55.
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 ‘proceedings' ”;
• “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”; and
• 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.” Id.
D. Discussion
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 ...

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