County District Court No. 14CR2817 Honorable Thomas R. Ensor,
J. Weiser, Attorney General, Jacob R. Lofgren, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Meghan M. Morris,
Deputy State Public Defender, Denver, Colorado, for
1 During voir dire in criminal trials, some judges -
seemingly not trusting jurors' ability to understand and
apply the standard reasonable doubt jury instruction - have
imparted to prospective jurors the judges' own
interpretations of the prosecution's burden of proof.
That practice is fraught with problems of constitutional
magnitude, potentially impairing a defendant's
fundamental right to a fair trial. Our supreme court, in
Johnson v. People, 2019 CO 17, and numerous
divisions of this court, as noted in People v.
Tibbels, 2019 COA 175, have repeatedly cautioned against
2 Today, we conclude that the trial court's error in
giving such an interpretation to prospective jurors
impermissibly lowered the burden of proof of guilt, and that
we must reverse the conviction entered against defendant,
Kyotte Kyle Knobee, a/k/a Kyotee Knobbe (Knobbe).
3 A jury found Knobbe guilty of second degree kidnapping
involving sexual assault, second degree kidnapping with a
deadly weapon, sexual assault of an at-risk victim,
aggravated motor vehicle theft, and third degree assault of
an at-risk victim. We reverse and remand with directions.
4 The prosecution's evidence showed that Knobbe and the
alleged victim, P.F., were in an on-again, off-again intimate
relationship. One night, Knobbe and another friend (N.W.)
visited P.F. at her house. The three of them - who are all
deaf and communicate by sign language - visited for several
hours before going to sleep in three different areas of the
house. The following morning, N.W. and P.F. were standing
outside when Knobbe came out and asked P.F. to follow him
back into the house. When P.F. entered the kitchen, Knobbe
grabbed a knife, pointed it at her, and ordered her to move
into the basement, where he threw her onto a bed, choked her,
and forcibly sexually assaulted her.
5 Around that time, P.F.'s parents arrived to drive her
to her son's soccer game. P.F.'s ex-husband had
custody of their son, and attending the son's soccer
games was an important part of P.F.'s court-ordered
parenting reintegration plan. N.W. told the parents that P.F.
was inside the house. After discovering P.F.'s truck in
the garage and all the doors to the house locked, the parents
drove to their own home to retrieve their keys to P.F.'s
house. When they were almost home, P.F.'s mother received
texts from P.F. saying "Help" and "Kyle try to
kill me." (P.F. later said she had sent the texts
quickly while Knobbe was not looking. When asked why she did
not call 911, she said that because she is deaf, she would
have been required to complete a video call, which would have
taken a significant amount of time.)
6 Meanwhile, Knobbe forced P.F. into her truck at knifepoint
and drove her around in the mountains for several hours. At
some point during the drive, Knobbe threw the knife out the
7 Shortly after Knobbe and P.F. left the house, P.F.'s
parents returned to her house and found the garage open, the
truck missing, and P.F.'s phone on her bed. They called
the police. Eventually, Knobbe drove P.F. back to her
neighborhood. Nearing P.F.'s house, he saw a police
officer outside, dropped P.F. off at the corner, and drove
8 P.F. went to a hospital and underwent a sexual assault
nurse examination, which found injuries to her arms, chest,
legs, and neck, and Knobbe's semen in her vaginal area.
9 Knobbe's theory of defense at trial was that P.F.
fabricated the allegations to cover for the fact that she had
used cocaine and had left with Knobbe instead of attending
her son's soccer game. Knobbe testified that after N.W.
went to bed the night before the incident, Knobbe and P.F.
stayed up and used cocaine before having consensual sex in
the basement. The next morning, P.F. came into the basement
and poked him in the back with a knife, surprising him and
causing him to grab her arms and choke her to get her to drop
the knife. After calming down, P.F. told him that she wanted
to go into the mountains. Without his knowledge, P.F. brought
the knife with her, and when she pulled out the knife during
the drive, he got it away from her and threw it out a window.
During the drive, P.F. told him about her son's soccer
game and that she was going to tell her parents that he had
raped and kidnapped her.
10 The jury convicted Knobbe of the offenses mentioned above;
acquitted him of a crime of violence sentence enhancement
count alleged in connection with the charge of sexual assault
on an at-risk victim; and could not reach a verdict on an
additional charge of sexual assault with a deadly weapon,
which the prosecution later dismissed.
11 At sentencing, the trial court merged the two kidnapping
offenses and sentenced Knobbe to an indeterminate term of
sixteen years to life imprisonment in the custody of the
Department of Corrections.
Evidence Was Sufficient to Support a Kidnapping Conviction
12 Knobbe asserts that the prosecution's evidence was
insufficient to prove that he was guilty of kidnapping under
section 18-3-302(3)(a), C.R.S. 2019. We address this issue
first because, if the evidence were insufficient, the
guarantees against double jeopardy in the United States and
Colorado Constitutions would bar the prosecution from
retrying Knobbe on this charge. See People v.
Marciano, 2014 COA 92M-2, ¶ 42. We conclude that
the evidence was sufficient to support the kidnapping
13 "When assessing the sufficiency of the evidence . .
., we review the record de novo to determine whether the
evidence, viewed in the light most favorable to the
prosecution, was both substantial and sufficient to support
the conclusion by a reasonable mind that the defendant was
guilty beyond a reasonable doubt." People v.
Griego, 2018 CO 5, ¶ 24.
14 According to Knobbe, the prosecution's evidence could
at most be interpreted to show that he moved the victim by
forcing her to be driven into the mountains after
the sexual assault, and that subsection 302(3)(a) can be
applied only where the kidnapped person is or will be
sexually assaulted after being kidnapped. In support of his
contention, Knobbe cites section 2-4-104, C.R.S. 2019, which
states that statutory "[w]ords in the present tense
include the future tense," and Sifton v. Stewart
Title Guaranty Co., 259 P.3d 542, 544 (Colo.App. 2011)
(stating that division was unaware of any Colorado authority
holding that present tense language applies to past events).
15 Section 18-3-302(3)(a) provides, "[s]econd degree
kidnapping is a class 2 felony if . . . [t]he person
kidnapped is a victim of a sexual offense pursuant to part 4
of this article." Nothing in the statute indicates
when the sexual offense must be committed in
relation to the kidnapping.
16 We do not resolve this timing conundrum because, as the
Attorney General argues, the prosecution presented evidence
at trial that Knobbe sexually assaulted the victim
after he pulled a knife from the knife block in the
kitchen, pointed the knife at her, and forcefully moved her
down the stairs into a basement bedroom, where he pushed her
onto a bed and sexually assaulted her. Viewing the evidence
in the light most favorable to the prosecution, People v.
Davis, 2012 COA 56, ¶ 12, we conclude that the
evidence was sufficient to support a conviction for
kidnapping. See § 18-3-302(1), (3), (4).
Therefore, the prosecution is not barred from retrying Knobbe
on this charge.
The Court's Comments on "Reasonable Doubt"
17 Knobbe contends that during jury voir dire the trial court
erred by making comments that trivialized the
prosecution's burden of proof and his presumption of
innocence. We agree and conclude that this error requires
18 During voir dire, the trial court had a discussion with
potential jurors - related at greater length below - about
the prosecution's burden to prove guilt beyond a
reasonable doubt. For now, we highlight the following
discussion between the court and a prospective juror - who
deliberated to a verdict - about the reasonable doubt
THE COURT: It is a standard that we use a lot of
times, beyond a reasonable doubt, when we do important
things in our lives, like buying a home, or choosing
doctors, or whatever. Do you understand?
THE JUROR: Yes, I do.
THE COURT: Can you hold the People to that burden
and not let them by on anything less, and not require
them to prove anything more?
(Emphases added.) The juror agreed to do so. After the close
of evidence, the court gave the jury a proper written
instruction defining the presumption of innocence, burden of
proof, and reasonable doubt, in accordance with COLJI-Crim.
Standard of Review
19 In Johnson, our supreme court treated a district
court judge's supplementary commentary to jurors about
the reasonable doubt instruction as an
"instruction." See Johnson,
passim. The Johnson court also recognized
that "[a]n instruction that lowers the prosecution's
burden of proof below reasonable doubt constitutes structural
error and requires automatic reversal." Id. at
¶ 8 (citing Sullivan v. Louisiana, 508 U.S.
275, 281-82 (1993)).
20 Knobbe asserts that the trial court's description of
the reasonable doubt standard trivialized the
prosecution's burden of proof by comparing the decision
jurors make in a criminal case to decisions they make in
their everyday lives. We agree.
Reasonable Doubt Standard
21 The supreme court in Johnson described the
reasonable doubt standard as a bedrock principle of American
In criminal cases, the prosecution is required to "prove
every factual element necessary to constitute the crime
charged beyond a reasonable doubt." Vega v.
People, 893 P.2d 107, 111 (Colo. 1995). This requirement
"dates at least from our early years as a Nation"
and is nothing short of "indispensable." In re
Winship, 397 U.S. 358, 361, 364, (1970). The U.S.
Supreme Court has held that the Due Process Clause mandates
the universal application of the reasonable doubt standard in
criminal prosecutions. See id. at 364 ("[W]e
explicitly hold that the Due Process Clause 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."). While the
standard's application is universally mandated, courts
retain some flexibility in defining what constitutes a
reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994)
("[S]o long as the court instructs the jury on the
necessity that the defendant's guilt be proved beyond a
reasonable doubt . . . the Constitution does not require that
any particular form of words be used . . . .").
Id. at ¶ 10.
22 As Johnson recognized, "[t]he U.S. Supreme
Court has cautioned that further attempts by courts or
parties to define 'reasonable doubt' do not provide
clarity," id. at ¶ 13. Johnson
quoted the admonition from Victor v. Nebraska, 511
U.S. at 22, that "trial courts must avoid defining
reasonable doubt so as to lead the jury to convict on a
lesser showing than due process requires."
Johnson, ¶ 13. And it cautioned that
"[a]ttempts to explain the term 'reasonable
doubt' do not usually result in making it any clearer to
the minds of the jury . . . ." Id. (quoting
Holland v. United States, 348 U.S. 121, 140 (1954),
in turn quoting Miles v. United States, 103 U.S.
304, 312 (1880)).
23 As we discuss below, in this case, the trial court's
description of the reasonable doubt standard improperly added
additional commentary on what "reasonable doubt"
Court's Improvised Instructions Were Unlike Those in
Johnson, and They Require Reversal
24 In Johnson, the improper instruction from the
trial judge consisted only of the following words:
[Y]ou would find [a defendant] guilty only if, after hearing
all of that evidence, you just can't bring yourself to do
it. You just have to hesitate. It's not there. You
can't find her guilty because the quality or quantity of
evidence just doesn't let you. That's when you've
hesitated to act.
Id. at ¶ 4.
25 Though the supreme court concluded that the addition by
the trial court in that case to the "reasonable
doubt" instruction was "problematic,"
id. at ¶ 17, it declined to reverse the
conviction because the trial court's addition was
"too nonsensical to be understood by the jury," was
given only once during voir dire, was not referenced by
either party at any time, and was "flanked by the proper
instruction regarding the ...