     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
                                                                  July 3, 2019

                               2019COA101

No. 16CA1468, People v. Hamilton — Evidence — Hearsay —
Hearsay Exceptions — Hearsay Within Hearsay —
Authentication — Machine-generated Records

     A division of the court of appeals decides that a computer-

generated report of the contents of a cell phone is not hearsay so

long as it was created without human input or interaction. To

qualify as a computer-generated report that does not constitute

hearsay, the party seeking to introduce the report must lay a

foundation that it was machine-generated without human input. In

addition, the division holds that a trial court commits error by

giving multiple jury instructions that unnecessarily highlight the

defendant’s prior conviction.
COLORADO COURT OF APPEALS                                         2019COA101


Court of Appeals No. 16CA1468
City and County of Denver District Court No. 13CR3362
Honorable Michael J. Vallejos, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rayon D. Hamilton,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division IV
                         Opinion by JUDGE LIPINSKY
                        Román and J. Jones, JJ., concur

                           Announced July 3, 2019


Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jon W. Grevillius, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Rayon D. Hamilton, appeals his conviction for

 sexual assault. J.F., the victim, accused Hamilton of drugging her

 at a bar, separating her from her friends, taking her to an

 apartment without her consent while she was unconscious, and

 sexually assaulting her.

¶2    Hamilton contends that the district court erred by (1)

 admitting hearsay to establish that neither Hamilton’s phone nor

 the victim’s phone contained text messages about which Hamilton

 had testified; (2) admitting evidence of two other instances in which

 Hamilton had been accused of sexual assault; (3) adding qualifying

 “factually innocent” language to the acquittal instruction; and (4)

 adding a reference to a prior conviction in the instruction advising

 the jury that Hamilton had been acquitted of a prior sexual assault

 charge.

¶3    We agree with his first contention, reverse on that basis, and

 remand for a new trial. We also agree that the district court erred

 in adding a reference to Hamilton’s prior conviction to the acquittal

 instruction. We reject his remaining contentions.




                                   1
                                Background

¶4    While at bars with friends, J.F. ran into Hamilton, whom she

 had met through an ex-boyfriend. Hamilton bought a round of

 shots for J.F. and her friends. J.F. testified she thought her “drink

 had drugs in it” because she could not remember much after she

 had “taken the shot.” J.F. told the jury the next thing she

 remembered was waking up on her stomach in an apartment, with

 her hands being held above her head, and Hamilton was having sex

 with her.

¶5    J.F. testified that she did not agree to have sexual intercourse

 with Hamilton. According to her testimony at trial, she kept saying

 “no” and tried to wiggle away from him.

¶6    Hamilton admitted to having sexual intercourse with J.F. but

 claimed it had been consensual. He testified that J.F. had been

 awake throughout the encounter.

¶7    The district court instructed the jury on one count of second

 degree kidnapping, two counts of sexual assault, and one count of

 distribution of a controlled substance. Hamilton was convicted on

 one of the sexual assault counts and the distribution count and

 was acquitted on the remaining counts.


                                   2
         Admissibility of Detective Slay’s Testimony Concerning the
                               Phone Reports

¶8     Hamilton told the investigating detective, Bryan Slay, that J.F.

  had sent him multiple texts while they were drinking together at the

  bars. He claimed that J.F. had also sent him texts the day after the

  alleged sexual assault. Hamilton gave similar testimony at trial.

¶9     Detective Slay testified that police department personnel

  downloaded the contents of Hamilton’s and J.F.’s phones and

  generated reports (the Reports) reflecting the phones’ contents. At

  trial, the prosecutor did not seek to introduce the Reports into

  evidence or call as witnesses the police department employees who

  had examined the phones or generated the Reports. Instead,

  Detective Slay testified that, based on his review of the Reports,

  neither phone contained text messages from J.F. to Hamilton.

¶ 10   Hamilton contends that Detective Slay’s testimony about the

  contents of the Reports was hearsay, the admission of which

  violated CRE 803(7) and 803(10) and his rights under the

  Confrontation Clauses of the United States and Colorado

  Constitutions. He argues that Detective Slay’s testimony unfairly

  prejudiced him because it contradicted his own testimony that J.F.



                                    3
  had texted him both the night of the alleged sexual assault and the

  next morning.

¶ 11   Analysis of the admissibility of Detective Slay’s testimony

  concerning the Reports requires us to determine whether the

  Reports were inadmissible hearsay, whether Detective Slay’s

  testimony constituted a second layer of inadmissible hearsay, and

  whether the prosecutor established the reliability and authenticity

  of the Reports.

                            A.   The Hearsay Issues

                            1.   Standard of Review

¶ 12   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). However,

  a trial court’s decision on whether a statement constitutes hearsay

  is a legal conclusion, which we review de novo. People v. Medina,

  25 P.3d 1216, 1223 (Colo. 2001); see also Dutch v. United States,

  997 A.2d 685, 689 (D.C. 2010) (concluding that the determination

  of whether a statement falls under an exception to the hearsay rule

  is a legal conclusion).

¶ 13   The harmless error standard applies to review of trial errors of

  nonconstitutional dimension preserved by objection. Hagos v.


                                       4
  People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Such an error is

  harmless where “there is no reasonable possibility that it

  contributed to the defendant’s conviction.” Pernell v. People, 2018

  CO 13, ¶ 22, 411 P.3d 669, 673; People v. Cohen, 2019 COA 38,

  ¶ 11, ___ P.3d ___, ___. Under this standard, reversal is required

  only if the error “substantially influenced the verdict or affected the

  fairness of the trial proceedings.” Tevlin v. People, 715 P.2d 338,

  342 (Colo. 1986).

¶ 14        We review unpreserved trial errors for plain error. Hagos,

  ¶ 14, 288 P.3d at 120. “Plain error is obvious and substantial.” Id.

  We reverse under plain error if the error “so undermined the

  fundamental fairness of the trial itself so as to cast serious doubt

  on the reliability of the judgment of conviction.” Id. (quoting People

  v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

       2.     Preservation of Hamilton’s Arguments Regarding Detective
                                  Slay’s Testimony

¶ 15        The defense did not object to the prosecutor’s two questions to

  Detective Slay regarding the contents of Hamilton’s phone.

  Hamilton, however, directs us to two other places in the record

  where he asserts he preserved this issue.



                                        5
¶ 16   First, during Detective Slay’s cross-examination, defense

  counsel asked, “Detective, he just asked you a question about texts

  on [J.F.’s] phone” and “[w]ere you testifying by your personal

  knowledge or some report that was given to you that you read?”

  After Detective Slay responded that his testimony was based on “[a]

  report from that phone being downloaded,” defense counsel

  “move[d] to strike that testimony as the foundation is hearsay.”

  Defense counsel argued that the prosecutor could have “[laid] the

  foundation to admit the text messages from [J.F.’s] phone, but they

  chose not to. Now they are trying to . . . admit hearsay statements

  from the detective about a report that he read.” But defense

  counsel’s objection concerned Detective Slay’s testimony regarding

  the contents of J.F.’s phone and not the contents of Hamilton’s

  phone.

¶ 17   Second, Hamilton asserts that his counsel preserved his

  argument regarding the contents of his phone during a bench

  conference addressing a juror’s proposed questions to Detective

  Slay: “Were there texts on [J.F.’s] phone to [Hamilton]? . . . Does

  the phone company have no record of the texts? Did you

  investigate with [Hamilton’s] and [J.F.’s] phone companies?”


                                    6
  Defense counsel objected to the questions, stating, “[w]ere there

  texts on [J.F.’s] phone to [Hamilton]? I object. That’s the same

  objection I made the last time.” Like the earlier objection, this

  objection addressed evidence of the contents of J.F.’s phone.

¶ 18        We therefore conclude that Hamilton did not preserve his

  argument that the district court erred in admitting Detective Slay’s

  testimony regarding the contents of Hamilton’s phone, but

  preserved his argument that the court erred in allowing Detective

  Slay to testify regarding the contents of J.F.’s phone.

                        3.   The Reports Were Hearsay

       a.     The Prosecutor Introduced the Content of the Reports into
                 Evidence to Prove the Truth of the Matter Asserted

¶ 19        Hearsay is “a statement other than one made by the declarant

  while testifying at the trial or hearing, offered in evidence to prove

  the truth of the matter asserted.” CRE 801(c). Hearsay is

  inadmissible except as provided by the Colorado Rules of Evidence

  or other applicable statutes or rules. CRE 802; People v. Buckner,

  228 P.3d 245, 249 (Colo. App. 2009).

¶ 20        A declarant is “a person who makes a statement.” CRE

  801(b). A “statement” is either “(1) an oral or written assertion or



                                       7
  (2) nonverbal conduct of a person, if it is intended by him to be

  communicative.” CRE 801(a).

¶ 21     During rebuttal, the prosecutor introduced the content of the

  Reports through Detective Slay’s testimony. He testified that he

  had “the tech guys work on [the phone],” and that he was able to

  view “the report that [he] had the technical people run.” Detective

  Slay then said that, based on his review of the Reports, Hamilton’s

  and J.F.’s phones did not contain any texts between Hamilton and

  J.F.

¶ 22     We disagree with the People’s argument that the prosecutor

  did not introduce the content of the Reports into evidence for the

  truth of the matter asserted. In characterizing the content of the

  Reports, Detective Slay was not merely providing a “personal

  observation about the existence of any text messages” or explaining

  “what actions the detective took as part of his investigation.” The

  prosecutor went far beyond merely asking Detective Slay whether

  he had obtained Hamilton’s and J.F.’s phones and whether the

  police had analyzed them.

¶ 23     Rather, his testimony focused on the key content of the

  Reports — their alleged assertion that the phones did not contain


                                     8
  the text messages from J.F. to Hamilton about which Hamilton had

  testified. The prosecutor specifically asked Detective Slay whether

  the Reports showed that J.F. had texted Hamilton on the relevant

  days. This question elicited testimony regarding the truth of the

  matters asserted in the Reports.

       b.    The Prosecutor Did Not Establish that the Reports Were
            Machine-Generated Without Human Input or Interpretation

¶ 24    Even if the prosecutor introduced the Reports into evidence to

  prove the truth of their contents, the Reports would not be hearsay

  if a machine generated them automatically. Such records are not

  hearsay because no “person” or “declarant” made a communicative

  “statement” within the meaning of CRE 801. Buckner, 228 P.3d at

  250. As a division of this court noted in Buckner, this reasoning is

  in accord with decisions from other jurisdictions applying

  substantially similar hearsay rules. Id. (citing United States v.

  Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005)); see United

  States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007) (concluding

  that only a person can make a statement and nothing “said” by a

  machine is hearsay); Hamilton, 413 F.3d at 1142-43 (holding

  information automatically generated by a computer was not hearsay



                                     9
  because there was no “declarant” or “statement” involved); United

  States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (deciding that

  an automatically generated time stamp was not hearsay because it

  was not uttered by a person). See generally People v. Marciano,

  2014 COA 92M-2, ¶ 28, 411 P.3d 831, 838 (in deciding cases

  involving the Colorado Rules of Evidence, we consider instructive

  cases from other jurisdictions interpreting analogous rules).

¶ 25   The Reports were machine-generated because

       •    the operator made no statements of any kind;

       •    the operator did not say or write the information the

            machine generated;

       •    the operator simply operated the machine;

       •    the machine used a common scientific and technological

            process;

       •    the conclusion of the machine-generated report was

            drawn solely from the machine’s data; and




                                   10
       •     the source of the data was independent of human

             observation or reporting.

  See Washington, 498 F.3d at 230; Adam Wolfson, Note, “Electronic

  Fingerprints”: Doing Away with the Conception of Computer-

  Generated Records as Hearsay, 104 Mich. L. Rev. 151, 159 (2005)

  (“[H]uman interaction often triggers the computer processes that

  create the records; however, the crucial factor is whether the record

  is a mark of computer activity or if it is the electronically-saved

  statements of a human user.”).

¶ 26   A computer-generated record constitutes hearsay, however,

  when its creation involves human input or interpretation. See

  United States v. Cestnik, 36 F.3d 904, 907 (10th Cir. 1994)

  (concluding that money transfer records constituted hearsay

  because an employee created them by entering information into the

  computer); see also Baker v. State, 117 A.3d 676, 683 (Md. Ct.

  Spec. App. 2015) (concluding that call records not generated solely

  by the internal operations of the computer, but that likely involved

  a human’s data entry, constituted hearsay); cf. Cranston v. State,

  936 N.E.2d 342, 344 (Ind. Ct. App. 2010) (concluding that evidence

  tickets produced by a chemical breath test machine are not hearsay


                                     11
  because they do not involve any material human intervention). For

  these reasons, we hold that the district court erred in determining

  that the Reports were not hearsay.

           4.   Detective Slay’s Testimony Was Also Hearsay

¶ 27   We next consider whether Detective Slay’s testimony regarding

  the Reports was itself hearsay. Hearsay included within hearsay is

  inadmissible unless each part of the combined statements conforms

  with an exception to the hearsay rule. CRE 805. “Where a

  statement contains multiple layers of potential hearsay, the court

  must analyze each layer separately to determine whether it falls

  within a recognized hearsay exception or exclusion.” People v.

  Phillips, 2012 COA 176, ¶ 101, 315 P.3d 136, 160.

¶ 28   “For hearsay within hearsay to be admitted as evidence, a

  hearsay exception must apply to each link of the chain.”

  Regan-Touhy v. Walgreen Co., 526 F.3d 641, 650 (10th Cir. 2008)

  (interpreting analogous federal rule).

¶ 29   Rather than offer the Reports themselves into evidence, the

  prosecutor put Detective Slay on the witness stand to tell the jury

  what the Reports said. He explained that “[t]he people that we have

  downloaded that information in our police technical unit” and that


                                    12
  he was characterizing “[a] report from that phone being

  downloaded.”

¶ 30   Detective Slay’s testimony about the Reports added a second

  layer of hearsay. See CRE 805. His testimony was hearsay because

  he described to the jury the content of the Reports to prove the

  truth of their content. See CRE 801(c). For this reason, absent the

  application of a hearsay exception, Detective Slay could not have

  testified about the contents of the Reports, even if the Reports

  themselves were admissible. See People v. Raffaelli, 701 P.2d 881,

  884 (Colo. App. 1985) (holding that detective’s or caseworker’s

  testimony regarding the content of a doctor’s report was

  inadmissible hearsay under CRE 802 and CRE 805). But the

  People do not argue that any hearsay exception applies, and the

  application of any such exception is not otherwise apparent to us.

          B.      The Reliability and Authenticity of the Reports

¶ 31   In addition to reviewing whether the Reports and Detective

  Slay’s testimony regarding the Reports were hearsay, we also must

  address whether the prosecutor established their reliability and

  authenticity.




                                     13
¶ 32   An analysis of the admissibility of a machine-generated record

  must consider the reliability and accuracy of the process used to

  create and obtain the underlying data, and whether the report is

  authentic. See People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2002)

  (explaining that the rules of relevancy, authentication, and hearsay

  govern admissibility of a computer printout); see also Washington,

  498 F.3d at 231 (“Any concerns about the reliability of . . . machine-

  generated information is addressed through the process of

  authentication not by hearsay . . . .”); Baker, 117 A.3d at 683

  (concluding that the admissibility of records that are entirely self-

  generated should be determined on the basis of the reliability and

  accuracy of the process used to create and obtain the data).

             1.   Reliability of Machine-Generated Records

¶ 33   The reliability of machine-generated records can be

  established “through the testimony of the operator of the machine

  or any other relevant evidence.” Thomas v. People, 895 P.2d 1040,

  1045 (Colo. 1995); Brewer v. Motor Vehicle Div., 720 P.2d 564, 568

  (Colo. 1986) (holding officer’s testimony, coupled with proof of

  compliance with operational procedures established by board of

  health, sufficient to establish that test was properly conducted).


                                    14
¶ 34   The proponent of the admissibility of computer-generated

  evidence must lay a sufficient foundation to establish that the

  machine’s results are valid and reliable, the machine was in proper

  working order at the time it generated the report, and the operator

  was qualified to operate it. See Thomas, 895 P.2d at 1045; see also

  People v. Bowers, 716 P.2d 471, 474 (Colo. 1986) (holding that the

  prosecution must lay a proper foundation for the admission of

  breath test results into evidence).

          2.    Authentication of Machine-Generated Records

¶ 35   The authentication requirement for admission of evidence is

  satisfied if the proponent establishes that the evidence is what the

  proponent claims it to be. CRE 901(a); People v. Heisler, 2017 COA

  58, ¶ 7, ___ P.3d ___, ___; Huehn, 53 P.3d at 736.

¶ 36   “[E]lectronic evidence may be authenticated in a number of

  different ways,” including through the testimony of a witness with

  knowledge that evidence is what it is claimed to be and through

  circumstantial evidence. People v. Glover, 2015 COA 16, ¶ 25, 363

  P.3d 736, 741 (quoting Tienda v. State, 358 S.W.3d 633, 639 (Tex.

  Crim. App. 2012)). The proponent may authenticate electronically

  generated printouts through the testimony of a person with


                                    15
  personal knowledge of how the printouts were generated and that

  they are what they are claimed to be. See Heisler, ¶ 12, ___ P.3d at

  ___; Glover, ¶ 24, 363 P.3d at 741; People v. Bernard, 2013 COA 79,

  ¶ 10, 305 P.3d 433, 435.

       3.       The Prosecutor Did Not Establish That the Reports Were
                                Reliable and Authentic

¶ 37        The prosecutor did not show that the Reports were reliable or

  authentic. See Huehn, 53 P.3d at 736; see also Washington, 498

  F.3d at 231; Baker, 117 A.3d at 683. Nor did the prosecutor

  introduce any evidence that the police’s machine had accurately

  downloaded the contents of Hamilton’s and J.F.’s phones or that

  the Reports were what the prosecutor claimed them to be. See

  Thomas, 895 P.2d at 1045; Glover, ¶ 12, 363 P.3d at 739.

¶ 38        Specifically, the record lacks any evidence that

            •    the machine used to generate the Reports produces

                 accurate reports of the contents of phones;

            •    the machine was in proper working order at the time it

                 generated the Reports;

            •    the person operating the machine at the time was

                 properly qualified;



                                        16
            •      the person followed proper procedures in operating the

                   machine;

            •      the Reports were valid and reliable; or

            •      Detective Slay was qualified to interpret the Reports.

¶ 39        Without this type of evidentiary foundation, Detective Slay’s

  testimony regarding the extraction of data from Hamilton’s and

  J.F.’s phones, the generation of the Reports, and his interpretation

  of the Reports was speculative.

¶ 40        We reject the People’s argument that the Reports were properly

  authenticated based on the prosecutor’s ipse dixit assertion that

  the Reports reflected the contents of Hamilton’s and J.F.’s phones.

  Counsel’s unsupported representation to the district court did not

  sufficiently establish the reliability and admissibility of the Reports.

  See Heisler, ¶ 12, ___ P.3d at ___.

       C.       The Admission of Detective Slay’s Testimony Regarding the
                  Contents of J.F.’s Phone Constituted Reversible Error

¶ 41        We hold that the district court erred in admitting Detective

  Slay’s testimony regarding the contents of J.F.’s phone into

  evidence because, as explained above,

            •      the Reports were inadmissible hearsay;



                                          17
       •    Detective Slay’s testimony regarding the content of the

            Reports was also inadmissible hearsay; and

       •    the prosecutor failed to prove that the Reports were

            reliable and authentic.

¶ 42   Because Hamilton preserved his objection to Detective Slay’s

  testimony regarding J.F.’s phone, we apply the harmless error

  standard in deciding whether the district court’s admission of the

  testimony requires reversal. See Hagos, ¶ 12, 288 P.3d at 119.

¶ 43   We discern a reasonable possibility that the jury considered

  Detective Slay’s testimony that J.F.’s phone contained no text

  messages to Hamilton in deciding that J.F. had not consented to

  engage in sexual intercourse with him. Much of Hamilton’s

  testimony concerned how J.F. had shown interest in him by texting

  him before and after the alleged sexual assault, in contrast to J.F.’s

  testimony that “there was never a physical attraction” and that

  there was “nothing that would have ever made [her] want to have

  sex with him.”

¶ 44   If the jury had believed Hamilton’s testimony about the text

  messages, it could reasonably have concluded that J.F had shown

  an interest in him. This determination, in turn, could have

                                    18
  supported a conclusion that they had engaged in consensual sexual

  intercourse and, therefore, no sexual assault had occurred.

  Detective Slay’s hearsay testimony directly contradicted this key

  evidence and, moreover, undermined Hamilton’s credibility.

¶ 45   Detective Slay’s testimony was particularly prejudicial because

  it was part of the prosecutor’s rebuttal case. Hamilton had no

  opportunity to respond to the evidence or provide an explanation as

  to why the police did not find any text messages from J.F. to

  Hamilton on J.F.’s phone. The record also indicates that the jury

  gave significant weight to the evidence showing that J.F. had not

  texted Hamilton. Several of the jurors’ questions for Detective Slay

  concerned whether J.F. had texted Hamilton.

¶ 46   Therefore, we conclude there is a reasonable possibility that

  Detective Slay’s testimony about the contents of J.F.’s phone

  contributed to Hamilton’s conviction of sexual assault, such that it

  undermines our confidence in the outcome of the case. People v.

  Casias, 2012 COA 117, ¶ 63, 312 P.3d 208, 220. (Because we

  reverse Hamilton’s conviction based on the erroneous admission of

  Detective Slay’s hearsay testimony regarding the contents of J.F.’s

  phone, we need not decide whether admission of Detective Slay’s


                                   19
  testimony regarding the contents of Hamilton’s phone was plain

  error.)

¶ 47   For the above reasons, we reverse Hamilton’s judgment of

  conviction for sexual assault and remand for a new trial. (Given

  our reversal of Hamilton’s judgment of conviction for sexual assault

  based on the erroneous admission of Detective Slay’s testimony

  regarding the Reports, we do not address Hamilton’s contention

  that allowing the testimony also violated his rights under the

  Confrontation Clauses of the United States and Colorado

  Constitutions.)

            Admissibility of Evidence of the Prior Sexual Assault Charges
                                  Against Hamilton

¶ 48   We address the remaining issues Hamilton raises on appeal,

  as they may arise again at the new trial.

¶ 49   Hamilton argues that the district court erred in admitting

  evidence of the acts underlying his two prior sexual assault

  charges. (Hamilton was acquitted of one of the charges and the

  other charge was withdrawn.) The prosecutor argued that the

  evidence of the two prior sexual assault charges was admissible

  because such evidence had “the same or similar character to the



                                      20
  sexual assault perpetrated against [J.F.]” and revealed a common

  pattern:

       •     identifying potential victims who were drinking with

             friends and had become intoxicated;

       •     separating them from their friends;

       •     taking them, without their consent, to an apartment;

       •     forcibly holding them down;

       •     sexually assaulting them; and

       •     Hamilton’s DNA appearing on vaginal swabs taken from

             each victim.

¶ 50   The victims in the two prior incidents testified that Hamilton

  had followed this pattern when he sexually assaulted them. The

  evidence thus supports the commonality between the two prior

  sexual assault charges and the charges against Hamilton

  concerning J.F. The district court found that the evidence of the

  prior charges of sexual assault was admissible under CRE 404(b),

  applying the four-part test delineated in People v. Spoto, 795 P.2d

  1314, 1318 (Colo. 1990), as well as under the doctrine of chances,

  because it was relevant to the issue of consent and Hamilton’s

  credibility. Hamilton’s counsel had argued that the evidence of the

                                   21
  two prior sexual assault charges was inadmissible because it

  differed significantly from the allegations underlying the charges

  involving J.F. He makes the same argument on appeal. We are not

  persuaded.

                         A.   Standard of Review

¶ 51    We review a trial court’s decision to admit or exclude other

  acts evidence for an abuse of discretion. People v. Jones, 2013 CO

  59, ¶ 11, 311 P.3d 274, 276. A district court abuses its discretion

  when its ruling on the admissibility of other acts evidence is

  manifestly arbitrary, unreasonable, or unfair, or based on a

  misapprehension of the law. People v. Trammell, 2014 COA 34,

  ¶ 10, 345 P.3d 945, 947-48.

       B.   The Law Governing Admissibility of Other Act Evidence

¶ 52    All relevant evidence is admissible unless otherwise provided

  by constitution, statute, or rule. CRE 402. Relevant evidence is

  that 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. Relevant evidence “may be excluded if its probative value

  is substantially outweighed by the danger of unfair prejudice.” CRE


                                    22
  403. Relevant evidence is not admissible to prove the character of a

  person by showing that he acted in conformity with that character

  on a particular occasion. CRE 404(b).

¶ 53   Notwithstanding these limitations, CRE 404(b) allows

  admission of evidence of a defendant’s other crimes, wrongs, or acts

  to prove, for example, motive, opportunity, intent, preparation,

  plan, knowledge, identity, or absence of mistake or accident. CRE

  404(b); Jones, ¶ 12, 311 P.3d at 276.

¶ 54   Recognizing the “grave statewide concern” that sexual offenses

  pose, the General Assembly adopted a statute to delineate clearly

  the CRE 404(b) admissibility requirements for other acts evidence

  in prosecutions for sexual crimes. Jones, ¶ 13, 311 P.3d at 277

  (quoting § 16-10-301(1), C.R.S. 2018). In a sexual offense case,

  “[t]he prosecution may introduce evidence of other acts of the

  defendant to prove the commission of the offense as charged for any

  purpose other than propensity.” § 16-10-301(3). Such purposes

  include the following:

            Refuting defenses, such as consent or recent
            fabrication; showing a common plan, scheme,
            design, or modus operandi, regardless of
            whether identity is at issue and regardless of
            whether the charged offense has a close nexus


                                   23
             as part of a unified transaction to the other
             act; showing motive, opportunity, intent,
             preparation, including grooming of a victim,
             knowledge, identity, or absence of mistake or
             accident; or for any other matter for which it is
             relevant.

  Id.

¶ 55    Before admitting other acts evidence under CRE 404(b) and

  section 16-10-301(3), a trial court must be satisfied, by a

  preponderance of the evidence, that the prior act occurred, and

  must consider the admissibility of the evidence under the four-

  prong Spoto analysis. Jones, ¶ 14, 311 P.3d at 277; Kinney v.

  People, 187 P.3d 548, 554 (Colo. 2008). Other acts evidence is

  admissible only if (1) it relates to a material fact in the case; (2) the

  evidence is logically relevant; (3) the logical relevance of the

  evidence is independent of the intermediate inference prohibited by

  CRE 404(b) that the defendant has a bad character; and (4) the

  probative value of the evidence is not substantially outweighed by

  the danger of unfair prejudice. Spoto, 795 P.2d at 1318.




                                      24
                         1.    Application of Spoto

       a.   The Other Act Evidence Must Relate to a Material Fact

¶ 56    Under the first prong of the Spoto analysis, the other acts

  evidence must relate to a material fact, which is a fact “of

  consequence to the determination of the action.” Spoto, 795 P.2d at

  1318 (quoting CRE 401).

¶ 57    In applying the first Spoto prong, the district court found that

  the “prior acts relate to a material fact, primarily the consent and

  credibility of the alleged victim in this case.”

¶ 58    Whether J.F. consented is a material fact. While Hamilton

  admitted to engaging in sexual intercourse with J.F., his theory of

  defense was that J.F. had consented. Indeed, during closing

  argument, Hamilton’s counsel argued that “just because somebody

  has been drinking alcohol . . . [or] is intoxicated does not mean they

  cannot consent to the sexual activity” and also that “[y]ou can be

  high on drugs and consent to sex.”

¶ 59    The prosecutor proffered the other acts evidence to prove

  intent and to rebut Hamilton’s consent theory by showing a

  common plan, scheme, design, modus operandi, and

  preparation. These factors are permissible to show a defendant’s


                                      25
  intent and to refute a consent defense. See People v. Martinez, 36

  P.3d 154, 159 (Colo. App. 2001).

¶ 60   We reject Hamilton’s contention that modus operandi evidence

  is not relevant unless the identity of the assailant is at issue.

  Section 16-10-301(3) specifically provides that the prosecution may

  introduce evidence of other acts to show “modus operandi,

  regardless of whether identity is at issue.” § 16-10-301(3).

       b.    The Other Acts Evidence Must Be Logically Relevant

¶ 61   Under the second prong of Spoto, the evidence must be

  logically relevant; it must have “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.” Jones, ¶ 16, 311 P.3d at 277 (quoting CRE 401); accord

  Spoto, 795 P.2d at 1318.

¶ 62   In reviewing the second Spoto prong, the district court found

  that “the evidence is logically relevant” because the two prior acts

  “go directly to the issue of consent and credibility of [J.F.].” The

  district court further found that “there are striking similarities in

  the other two offenses” that are relevant to whether “Hamilton was




                                     26
  acting with or without consent or whether he was sexually

  assaulting this individual.”

¶ 63   The prosecutor argued that the details of the two prior sexual

  assault charges were part of a pattern similar to the facts involving

  the alleged sexual assault of J.F. The record supports this

  inference.

¶ 64   The evidence of the other acts has a tendency to make

  Hamilton’s intent to sexually assault J.F. and J.F.’s lack of consent

  more probable than it would be without the evidence. See Jones,

  ¶ 16, 311 P.3d at 277; Spoto, 795 P.2d at 1318. Thus, this

  evidence had a tendency to allow reasonable jurors to infer that

  Hamilton sexually assaulted J.F.

        c.   The Other Acts Evidence Must Create an Inference
         Independent of Its Reflection on the Defendant’s Character

¶ 65   The third prong of Spoto “requires that logically relevant

  evidence achieve its relevance in some way other than through the

  impermissible inference that a person who engages in a bad act

  does so because he acts in conformity with his bad character.”

  Jones, ¶ 16, 311 P.3d at 277; Spoto, 795 P.2d at 1318. While the

  other acts evidence is admissible even if it would allow an



                                     27
  impermissible character inference, the proffered evidence must be

  logically relevant independent of that inference. Jones, ¶ 16, 311

  P.3d at 277. “Plan, scheme, design, modus operandi, and motive

  . . . are well-accepted methods of proving the ultimate facts

  necessary to establish the commission of a crime, without reliance

  upon an impermissible inference from bad character.” People v.

  Rath, 44 P.3d 1033, 1040 (Colo. 2002).

¶ 66   The district court found that the prior act evidence was “not

  admitted to show character, but rather, again, went to the issue of

  consent and credibility.” The district court further found that the

  evidence went to “proof of motive, intent, modus operandi, plan,

  [and] absence of mistake.”

¶ 67   The logical relevance of the evidence is independent of the

  inference that Hamilton is a person of bad character who sexually

  assaulted J.F. in conformity with his bad character. The evidence

  demonstrated a pattern of behavior in committing sexual assaults

  from which the jury could infer that Hamilton sexually assaulted

  J.F., independent of any character flaws or propensity.

¶ 68   Further, the inference that Hamilton acted in conformity with

  his pattern of identifying women for sexual assault does not rely on


                                    28
  his character. Rather, it rests on the facts common to the other

  acts and his alleged sexual assault of J.F.: targeting intoxicated

  women, separating them from their friends, taking them to an

  apartment against their will, and sexually assaulting them. This is

  modus operandi evidence, which allows for proof of the ultimate

  facts in a criminal case without relying on an inference of bad

  character. See id. at 1041.

¶ 69   We reject Hamilton’s contention that the other acts evidence

  was not sufficiently similar to the charges involving J.F. to be

  admissible under section 16-10-301(3). Evidence of other acts may

  be introduced in sexual assault cases to show common plan or

  modus operandi regardless of whether the charged offense has a

  close nexus as part of a unified transaction involving the other acts.

  See § 16-10-301(3). Consistent with Spoto, the district court

  reviewed the underlying allegations in all three instances and found

  that there were “striking similarities in the other two offenses.” The

  record supports the district court’s finding.




                                    29
  d.    The Risk of Unfair Prejudice Must Not Substantially Outweigh
               the Probative Value of the Other Acts Evidence

¶ 70   Under the fourth prong of Spoto, “we must assess whether the

  probative value of the evidence is substantially outweighed by the

  danger of unfair prejudice.” Spoto, 795 P.2d at 1318. The district

  court retains a great deal of discretion in determining whether the

  other acts evidence is sufficiently probative for legitimate purposes.

  Rath, 44 P.3d at 1041. The balance required by CRE 403 favors

  admission of the evidence. Therefore, a reviewing court must afford

  the evidence the maximum probative value attributable by a

  reasonable fact finder and the minimum unfair prejudice to be

  reasonably expected. Id. at 1043.

¶ 71   A court does not consider Rule 403’s “probative value” in

  isolation but evaluates the “marginal” or “incremental” probative

  value of the evidence relative to the other evidence in the case. Id.

  Thus, the court must weigh “the logical force of the evidence and

  the proponent’s need for the evidence” in light of other available

  evidence. Id. (quoting Martin v. People, 738 P.2d 789, 794 (Colo.

  1987)). Evidence of other acts is “typically relevant and highly

  probative” and should therefore be more readily available in sexual



                                    30
  assault cases than in other types of criminal proceedings. People v.

  Villa, 240 P.3d 343, 350 (Colo. App. 2009) (quoting § 16-10-301(1)).

  Generally, “the probative value of such evidence will outweigh any

  danger of unfair prejudice.” Id. at 352 (quoting § 16-10-301(1)).

¶ 72   In reviewing the fourth Spoto prong, the district court found

  that, although the other acts evidence is prejudicial, its “probative

  value is not substantially outweighed by the danger of unfair

  prejudice.”

¶ 73   Because J.F.’s disputed testimony is the only direct evidence

  of the sexual assault, additional evidence “may have particular

  ‘marginal’ or ‘incremental’ probative value.” Rath, 44 P.3d at 1043.

  Although there were differences in the circumstances surrounding

  each of the alleged sexual assaults, they shared a number of

  significant characteristics that evidence a pattern of behavior rather

  than unrelated acts. The combination of the three incidents added

  substantial weight to the inference that Hamilton employs a

  technique to isolate intoxicated women for the purpose of sexually

  assaulting them.

¶ 74   The other acts evidence directly addressed Hamilton’s

  contention that J.F. had consented to sexual intercourse with him.


                                    31
  It added substantial weight to the prosecutor’s proof that J.F. was a

  credible witness and that she did not consent to engage in sex with

  Hamilton. Other acts evidence is admissible to corroborate a

  victim’s testimony of the existence of a fact. See id.

¶ 75    Thus, although the other acts evidence was undoubtedly

  prejudicial to Hamilton, the record supports the district court’s

  finding that the probative value of that evidence in proving the

  elements of the offense was not substantially outweighed by any

  danger of unfair prejudice to Hamilton.

¶ 76    Additionally, because the district court instructed the jury that

  it could consider the prior charges of sexual assault only for the

  limited purpose of “proving [Hamilton’s] motive, intent, modus

  operandi, plan, absence of mistake, and the issue of consent,” it

  reduced the danger of unfair prejudice. See People v. Everett, 250

  P.3d 649, 662 (Colo. App. 2010). Nothing in the record suggests

  that the jury failed to understand or apply those instructions.

   2.    The District Court Did Not Abuse Its Discretion in Admitting
                           the Other Acts Evidence

¶ 77    The district court sufficiently assessed each prong of the four-

  part Spoto analysis in finding that the facts underlying the two prior



                                    32
  charges of sexual assault were admissible as other acts evidence.

  We hold that the district court’s application of the four-prong

  analysis was not “manifestly arbitrary, unreasonable or unfair,”

  and, therefore, that the district court did not abuse its discretion in

  admitting the other acts evidence under CRE 404(b) and section 16-

  10-301(3). Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).

                      3.   The Doctrine of Chances

¶ 78   The district court alternatively found that the evidence of the

  two prior charges of sexual assault was admissible under the

  doctrine of chances. Under the doctrine of chances, the

  prosecution must establish that

             (1) the evidence of other acts must be roughly
             similar to the charged crime; (2) the number of
             unusual occurrences in which the defendant
             has been involved must exceed the frequency
             rate for the general population; and (3) there
             must be a real dispute between the
             prosecution and the defense over whether the
             actus reus occurred.

  People v. Weeks, 2015 COA 77, ¶ 29, 369 P.3d 699, 706.

¶ 79   The doctrine of chances “provides one theory of relevance

  under which a trial court may determine that other acts evidence

  satisfies the second and third prongs of the Spoto analysis.” Jones,



                                    33
  ¶ 17, 311 P.3d at 277. However, district courts are under no

  obligation to analyze other acts evidence under the doctrine of

  chances. Id. at ¶ 22, 311 P.3d at 278. While evidence that satisfies

  the doctrine of chances may also satisfy elements of the Spoto

  analysis, a district court may admit CRE 404(b) evidence under

  Spoto without also determining whether the evidence is admissible

  under the doctrine of chances. Id. at ¶ 9, 311 P.3d at 276.

¶ 80   Because we conclude that the district court did not err in

  admitting the other acts evidence under Spoto, we need not

  determine whether the evidence was also admissible under the

  doctrine of chances. (We also need not consider Hamilton’s

  argument that the admission of evidence of the other acts of sexual

  assault violated his rights to due process and an impartial jury.

  Due process does not bar the admission of evidence under CRE

  404(b). See Dowling v. United States, 493 U.S. 342, 352-53 (1990);

  People v. Conley, 804 P.2d 240, 244 (Colo. App. 1990).)

          The Jury Instructions on Hamilton’s Prior Conviction and
                                  Acquittal

¶ 81   Hamilton contends that the district court violated his right to

  due process by (1) adding language to the acquittal instruction



                                   34
  telling the jury it should not presume he was “factually innocent” of

  sexually assaulting M.D. (a victim in one of the two prior sexual

  assault cases), even though he had been acquitted on the sexual

  assault charge; and (2) informing the jurors in the acquittal

  instruction that he had been convicted of kidnapping M.D.

                        A.    Standard of Review

¶ 82   We review jury instructions de novo, considering them as a

  whole to determine whether they accurately state the governing

  law. People in Interest of J.G., 2016 CO 39, ¶ 33, 370 P.3d 1151,

  1161. We review a district court’s decision to give a particular

  instruction for an abuse of discretion. Id. A district court “abuses

  its discretion where its decision to provide an instruction is

  manifestly arbitrary, unreasonable, or unfair, or based on an

  erroneous understanding or application of the law.” Id.

¶ 83   Under the harmless error standard, reversal is required if the

  preserved error “substantially influenced the verdict or affected the

  fairness of the trial proceedings.” Tevlin, 715 P.2d at 342.

                             B.   Preservation

¶ 84   We disagree with the People that Hamilton did not preserve his

  arguments regarding the “factually innocent” and conviction


                                    35
  language added to the acquittal instruction. The defense objected

  to the prosecutor’s proposed acquittal instruction “[j]ust in its

  entirety, telling the jury to presume or not to presume different

  things.” Defense counsel further said, “I don’t know that us

  opening the door and telling the jury that he was found not guilty of

  the sex assault . . . necessarily opens the door to the jury being

  informed that he was found guilty of felony kidnapping . . . .”

¶ 85        These objections preserved the defense’s challenge to the

  inclusion of the “factually innocent” and conviction language in the

  acquittal instruction. Therefore, we review this issue for harmless

  error. See Hagos, ¶ 12, 288 P.3d at 119.

       C.     The Inclusion of the “Factually Innocent” Language in the
                                 Acquittal Instruction

¶ 86        Hamilton contends that the district court erred by informing

  the jury in the acquittal instruction that it should not presume he

  was “factually innocent” of sexually assaulting M.D. He contends

  that this language trivialized the presumption of innocence.

                 1.    The Law Governing Acquittal Instructions

¶ 87        No per se rule either requires or bars the introduction of

  evidence of an acquittal; rather, district courts must determine



                                        36
  whether to admit such evidence on a case-by-case basis. Kinney,

  187 P.3d at 557. An acquittal instruction is appropriate where the

  jury learns that the defendant was tried in another criminal case

  and may be speculating as to the outcome of that trial. Id. Under

  these circumstances, the probative value of a prior acquittal is

  significant. Id. A district court may allow evidence of the acquittal

  for the limited purpose of ensuring the jury does not give improper

  weight to the acts underlying the criminal charge in the prior case.

  Id.

¶ 88     Further, a district court concerned about possible juror

  confusion has the discretion to instruct the jury that it should not

  presume that the defendant was “factually innocent” solely because

  the jury in the prior case acquitted him. The district court can

  provide an instruction that the previous jury determined, for

  whatever reason, that the state had failed to prove the defendant’s

  guilt beyond a reasonable doubt. Id. at 558.

        2.   The District Court Did Not Err in Adding the “Factually
                Innocent” Language to the Acquittal Instruction

¶ 89     The acquittal instruction stated, in relevant part:




                                     37
                 The Defendant, Rayon Hamilton, was acquitted
                 (or found not guilty) of sexually assaulting
                 [M.D.]. He was convicted of kidnapping [M.D.].

                 You, the jurors in this case, should not
                 necessarily presume that because Mr.
                 Hamilton was found guilty by a previous jury
                 that the Defendant was factually guilty but
                 rather that a previous jury determined that the
                 state proved his guilt beyond a reasonable
                 doubt. Similarly, you should not necessarily
                 presume that because Mr. Hamilton was found
                 not guilty of prior acts by a previous jury that
                 the Defendant was factually innocent, but
                 rather that the previous jury determined for
                 whatever reason that the state failed to prove
                 his guilt beyond a reasonable doubt.

¶ 90        The district court added the “factually innocent” language to

  the instruction because it was “fair that [the jury] hear that the

  acquittal is a burden issue and not really a factual issue.” This

  language mirrored the language for acquittal instructions that the

  supreme court approved in Kinney. See Kinney, 187 P.3d at 558.

¶ 91        We therefore hold that the district court did not abuse its

  discretion by adding the qualifying “factually innocent” language to

  the acquittal instruction.

       D.     The Two Jury Instructions on Hamilton’s Prior Conviction

¶ 92        Hamilton contends that the district court erred in adding

  qualifying “factually innocent” language to the acquittal instruction


                                        38
  and in adding a reference to Hamilton’s prior kidnapping conviction

  to the instruction addressing Hamilton’s prior acquittal of sexual

  assault.

¶ 93    In addition to the conviction language added to the acquittal

  instruction quoted above, the district court provided a cautionary

  instruction that said, in its entirety:

              The Defendant is to be tried for the crime
              charged in this case, and no other. You may
              consider the testimony of a previous conviction
              only in determining the credibility of the
              Defendant as a witness, and for no other
              purpose. When the Defendant testifies, his
              credibility is to be determined in the same
              manner as [that of] any other witness.

¶ 94    The People argue that the district court correctly instructed

  the jury on the kidnapping conviction because “[e]vidence of a prior

  felony conviction is admissible for purposes of affecting the

  credibility of the witness” and, “[i]f an acquittal is important to

  judge the credibility of the witness, then a conviction in the same

  proceeding is equally important.”

       1.    The Law Governing Jury Instructions Concerning Prior
                                Convictions

¶ 95    Evidence of a prior criminal conviction is generally

  inadmissible because of its highly prejudicial effect. Harper v.


                                      39
  People, 817 P.2d 77, 85 (Colo. 1991). Such evidence casts

  “damning innuendo likely to beget prejudice in the minds of juries.”

  People v. Lucero, 200 Colo. 335, 343, 615 P.2d 660, 665 (1980)

  (quoting Stull v. People, 140 Colo. 278, 284, 344 P.2d 455, 458

  (1959)). Thus, the disclosure of a defendant’s prior felony

  conviction to a jury will so burden the trial “with the baggage of his

  prior criminality that a fair trial as we know it bec[o]me[s] an

  impossibility.” Id. at 344, 615 P.2d at 666.

¶ 96   However, “[w]hen a defendant exercises his statutory privilege

  of testifying, all prior felony convictions and their nature may be

  shown to impeach his testimony.” People v. Medina, 40 Colo. App.

  490, 493, 583 P.2d 293, 295 (1978) (quoting Candelaria v. People,

  177 Colo. 136, 140, 493 P.2d 355, 357 (1972)).

¶ 97   The district court must advise a defendant, before he takes the

  witness stand, that the prosecution may respond to his testimony

  by disclosing his prior felony conviction to the jury. “[I]f the felony

  conviction is disclosed to the jury then the jury can be instructed to

  consider it only as it bears upon his credibility.” People v. Curtis,

  681 P.2d 504, 514 (Colo. 1984).




                                     40
¶ 98        In the limited circumstances where prior convictions are

  admissible, “stringent standards apply and cautionary instructions

  must accompany the introduction of such prior convictions.”

  Harper, 817 P.2d at 85. The cautionary instructions can alleviate

  the danger that a jury will misuse evidence of the defendant’s prior

  conviction to find him guilty. People v. Chavez, 853 P.2d 1149,

  1152 (Colo. 1993) (stating that a defendant is “entitled to an

  instruction explaining to the jury that evidence of his prior felonies

  was admitted only for the limited purpose of impeaching his

  credibility”).

       2.      The District Court Did Not Err in Providing a Cautionary
              Instruction on Hamilton’s Prior Conviction for Kidnapping

¶ 99        Before Hamilton took the witness stand, the district court gave

  him the required advisement that, if he “were to testify and that

  [kidnapping] conviction is disclosed to the jury, then they would be

  instructed to consider the felony conviction only as it bears upon

  the issue of your credibility and for no other purpose.” See Curtis,

  681 P.2d at 514. Hamilton confirmed he understood the

  advisement and chose to testify anyway. Thus, the prosecutor was

  permitted to introduce evidence of the kidnapping conviction to



                                       41
  impeach Hamilton’s credibility. See People v. Chavez, 621 P.2d

  1362, 1366 (Colo. 1981).

¶ 100   During Hamilton’s testimony, defense counsel elicited evidence

  that Hamilton was “found not guilty of sexual[ly] assaulting [M.D.],”

  but that he was “found guilty of kidnapping [her].” The prosecutor

  made no reference to the kidnapping conviction during cross-

  examination. We agree with the People that the jury could consider

  Hamilton’s kidnapping conviction in weighing his credibility. See

  id.

   3.    The District Court Erred in Adding a Reference to Hamilton’s
                 Prior Conviction to the Acquittal Instruction

¶ 101   We next turn to whether the district court erred in adding

  language regarding the kidnapping conviction to the acquittal

  instruction. The district court’s conviction language mirrored the

  acquittal language in the same instruction, but with “guilty”

  substituted for “not guilty of prior acts,” and “innocent” and “proved

  his guilt” substituted for “failed to prove his guilt.” (The conviction

  language did not include the “for whatever reason” language that

  appears in the acquittal language of the instruction.) Therefore, the




                                     42
  jury received two instructions reminding it of Hamilton’s prior

  conviction.

¶ 102   We hold that the district court erred in adding the conviction

  language to the acquittal instruction, for four reasons.

¶ 103   First, the instruction went beyond the purpose of the

  cautionary conviction instruction discussed in Chavez. It did more

  than explain to the jury that the evidence of Hamilton’s prior

  conviction was admitted for the limited purpose of impeaching his

  credibility. See Chavez, 853 P.2d at 1152. The conviction language

  added to the acquittal instruction made no reference to credibility.

¶ 104   Second, although the instruction gave the jury no more

  information about the prior conviction than it had obtained through

  Hamilton’s testimony, the language in the instruction, coupled with

  the language of the stand alone instruction on the conviction,

  unnecessarily highlighted Hamilton’s prior conviction. The People

  have provided no authority, nor can we find any, for the proposition

  that a district court may provide the jury with two or more

  instructions addressing a defendant’s prior conviction.

¶ 105   Third, the addition of the conviction language to the acquittal

  instruction defeated the limited purpose of the acquittal instruction


                                    43
  — to ensure the jury did not give improper weight to the other acts

  evidence presented at trial and did not speculate whether Hamilton

  had been convicted on a charge for which he had been acquitted.

  See Kinney, 187 P.3d at 557. The reasons for providing an

  acquittal instruction do not give a district court license to inform

  the jurors in the same instruction that the defendant was convicted

  of a different offense in the same case. We therefore disagree with

  the People that, because the district court gave an instruction on

  Hamilton’s acquittal for sexually assaulting M.D., that instruction

  needed to refer to Hamilton’s conviction in the same case for

  kidnapping her.

¶ 106   Lastly, the conviction language added to the acquittal

  instruction was confusing and illogical. It told the jury that

  Hamilton may have been convicted of kidnapping M.D. even though

  he was not “factually guilty” of the crime, because the previous jury

  determined that the state had proved his guilt beyond a reasonable

  doubt. Although the district court surely did not intend to suggest

  that the earlier conviction was a miscarriage of justice, the jurors

  may have questioned how a jury could convict a defendant of an

  offense of which the defendant was not “factually guilty.” Further, a


                                    44
  literal reading of the instruction suggested that the jury could

  convict Hamilton even if he was not “factually guilty” of sexually

  assaulting J.F.

¶ 107   Thus, we conclude that the district court erred in adding the

  conviction language to the acquittal instruction. Because we

  reverse the judgment of conviction on other grounds, we need not

  determine whether the error was harmless.

                       Hamilton’s Right to Due Process

¶ 108   Finally, Hamilton contends that the district court violated his

  right to due process by allowing the prosecutor to present evidence

  of other acts for which he was tried and acquitted, and in

  instructing the jury on his prior conviction.

¶ 109   Because we resolve these issues in Hamilton’s favor on non-

  constitutional grounds, we need not address his due process

  argument. People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1251

  (Colo. 2003).

                                  Conclusion

¶ 110   We reverse the judgment of conviction for sexual assault and

  remand for a new trial.

        JUDGE ROMÁN and JUDGE J. JONES concur.


                                    45
