     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
                                                            January 16, 2020

                                 2020COA7

No. 16CA0347, People v. Knobbe — Trials — Voir Dire; Criminal
Law — Burden of Proof — Reasonable Doubt; Constitutional
Law — Due Process

     Where a trial court analogized the reasonable doubt standard

to decisions jurors make in their everyday lives, like choosing a

doctor or buying a home, a division of the court of appeals holds for

the first time that such a description constituted structural error

and required automatic reversal. The description impermissibly

lowered the prosecution’s burden of proof and thus infringed on the

defendant’s due process rights.

     The division also holds that the trial court erred by omitting

language from its second degree kidnapping jury instruction. The

division further concludes that the prosecution’s evidence was

sufficient to support a kidnapping conviction and that the
prosecution is not barred from retrying the defendant on that

charge. Last, the division declines to address several issues that

may not arise on retrial.

     The dissent would affirm, concluding that the trial court’s

comments were neither structural nor plain error.
COLORADO COURT OF APPEALS                                             2020COA7


Court of Appeals No. 16CA0347
Adams County District Court No. 14CR2817
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyotte Kyle Knobee, a/k/a Kyotee Knobbe,

Defendant-Appellant.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                       Division II
                              Opinion by JUDGE TERRY
                                   Pawar, J., concurs
                      Dailey, J., concurs in part, dissents in part

                            Announced January 16, 2020


Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶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 the practice.

¶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.


                                   1
                       I.   Factual Background

¶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


                                   2
 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 window.

¶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 away.

¶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.




                                    3
¶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


                                    4
  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.

       II.   The 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 conviction.

¶ 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

                                    5
  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.




                                      6
¶ 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.

       III.   The Court’s Comments on “Reasonable Doubt” Require
                                  Reversal

¶ 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 reversal.

¶ 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

                                       7
  highlight the following discussion between the court and a

  prospective juror — who deliberated to a verdict — about the

  reasonable doubt standard.

            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. E:03 (2018).

                        A.   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


                                    8
  structural error and requires automatic reversal.” Id. at ¶ 8 (citing

  Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)).

                              B.   Analysis

¶ 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.

                 1.    The Reasonable Doubt Standard

¶ 21   The supreme court in Johnson described the reasonable doubt

  standard as a bedrock principle of American jurisprudence:

            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
                                    9
             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” is.

                                     10
       2.     The 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 burden of proof at the beginning

  and end of the trial,” id. at ¶¶ 1, 15.

¶ 26        Here, too, the jury was given proper “reasonable doubt”

  instructions at the beginning and end of trial. But unlike in

  Johnson, where the trial court gave a brief and incorrect description

                                        11
  of a legal standard, id. at ¶ 9, the court here went into more detail

  on the subject of reasonable doubt. And unlike in Johnson, the

  court’s description here was not so “isolated and nonsensical,” id.,

  as to overcome any concern that the jury would misapply the

  reasonable doubt standard. Even though Johnson treated

  instructional error on reasonable doubt as structural error,

  Johnson, ¶ 8 — meaning an error that would require automatic

  reversal — we follow the supreme court’s lead in that case, and

  proceed to consider whether the instructional error would have

  made enough of a difference to require reversal. See id. at ¶¶ 9, 18.

  As we conclude below, unlike in Johnson, the court’s error here

  requires reversal.

¶ 27   Johnson came after a long line of cases from across the United

  States recognizing the problem of trial courts attempting to redefine

  the reasonable doubt standard for juries. A division of this court

  has recognized that

            [w]ell-intentioned trial courts, seeking to
            provide additional clarity to prospective jurors,
            sometimes feel the urge to go beyond these
            instructions and either insert their own
            supplemental instructions or attempt to add
            “flesh to the bones” of the standard
                                    12
             instructions by providing examples and
             hypotheticals. Divisions of this court have
             repeatedly expressed disapproval of the
             practice, because such instructions run the
             risk of confusing the jurors and may even
             lower the burden of proof or diminish the
             presumption of innocence.

  People v. Flynn, 2019 COA 105, ¶ 42; accord Tibbels, ¶ 40 (“strongly

  discourag[ing]” trial courts’ use of “everyday illustrations to explain

  reasonable doubt”); People v. Camarigg, 2017 COA 115M, ¶ 46

  (“[E]quat[ing] the burden of proof to an everyday choice can be

  improper.”); but see People v. Avila, 2019 COA 145, ¶¶ 42-48

  (upholding conviction where trial court likened application of the

  “beyond a reasonable doubt” standard to the decisions one makes

  when buying produce and deciding whether to buy a house with a

  crack in the foundation).

¶ 28   Since at least 1914, Colorado appellate courts have been

  discouraging trial courts from creating their own formulations of

  reasonable doubt. See Foster v. People, 56 Colo. 452, 458, 139 P.

  10, 12 (1914) (“[W]e [have previously] called the attention of district

  attorneys and trial judges, and now do so again, to the advisability

  of following an approved instruction on the subject of reasonable


                                     13
  doubt . . . , for the reason that this is the safe practice, and obviates

  the necessity of considering instructions on the subject differently

  worded.”). And yet, the issue arises again and again in the court of

  appeals. See Tibbels, ¶ 33 (“[T]wenty-two decisions of this court,

  both published and unpublished, have repeatedly discouraged trial

  courts’ use of illustrations to explain reasonable doubt, the

  presumption of innocence, and other legal concepts.”).

                        a.    The Court’s Colloquy

¶ 29   At the start of voir dire, the court announced to the jury venire

  that he had “about 13 points to make” and that he would make

  them with “the first 13” prospective jurors. Addressing each of

  those jurors directly, he engaged them in a colloquy about certain

  trial concepts, using folksy, colorful, and memorable language.

¶ 30   The judge began by describing the charges that had been

  lodged against Knobbe. He then moved to a description of his own

  interpretation of the reasonable doubt standard.

¶ 31   The judge asked a potential juror, “Are you a reasonable

  person?” After the juror responded, “I believe so,” the judge gave

  the following description of the reasonable doubt standard. He


                                     14
began with an almost verbatim quotation of part of the actual, legal

definition of the standard that the jurors would be given at the close

of trial (included in the first quoted paragraph, below). See COLJI-

Crim. E:03. The judge then went on to give his own interpretation

of the meaning of that standard:

          THE COURT: The burden of proof that the
          People have is called beyond a reasonable
          doubt. And that means a doubt that would
          cause a reasonable person to hesitate and
          pause in matters of importance to themselves.
          Do you understand?

          THE JUROR: Yes, I do.

          THE COURT: Have you ever heard the term
          beyond a shadow of a doubt?

          THE JUROR: Yes, I have.

          THE COURT: Sure. We all have. It is great
          for books. It is great for the theatre. It has
          pizzazz. Beyond a shadow of a doubt. But
          there is no such thing in any court as proof
          beyond a shadow of a doubt. Because if you
          think of that term, that means there is
          absolutely no doubt whatsoever. If life has
          taught us anything, life has taught us nothing
          we do as human beings can be proven beyond
          a shadow of a doubt. Anything can happen.
          We don’t run our lives that way, but anything
          could happen. We could have an earthquake
          in Brighton, Colorado. Fracking. I don’t know.
          But I am not worried about it.
                                   15
             Whoever would have thought somebody could
             land a jet airliner in the middle of the Hudson
             River and nobody gets hurt? But it happened.
             But we don’t base our lives on those things.

             I don’t know how best to explain it. 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?

             THE JUROR: Yes, Your Honor, I can do that.

  (Emphases added.)

¶ 32   After extracting this promise from the juror, the judge went on

  to discuss his view of other trial concepts with prospective jurors.

                              b.   Discussion

¶ 33   A jury can only fulfill its constitutional role of finding each

  element of a charged offense beyond a reasonable doubt when it

  has been properly instructed. Griego v. People, 19 P.3d 1, 7 (Colo.

  2001). “[I]f the trial court properly instructed the jury on the law —

  even with ‘objectionable language . . . [in] the trial court’s

                                     16
  elaboration of the reasonable doubt instruction’ — then there is no

  violation of due process.” Johnson, ¶ 14 (quoting People v.

  Sherman, 45 P.3d 774, 779 (Colo. App. 2001)).

¶ 34   We conclude that the trial court improperly instructed the jury

  on the reasonable doubt standard, and that, for the following four

  reasons, reversal of Knobbe’s conviction is required.

¶ 35   First, the court’s improvised description of the standard was

  an incorrect statement of the law that lowered the prosecution’s

  burden of proof. See Tibbels, ¶ 33 (“Because the prosecution has

  the burden of proving every charge beyond a reasonable doubt, any

  instruction on reasonable doubt that lowers this burden of proof

  violates a defendant’s constitutional right to due process.”).

¶ 36   As the judge initially — correctly — told the jurors, a

  “reasonable doubt” is “a doubt that would cause a reasonable

  person to hesitate and pause in matters of importance to

  themselves.” See COLJI-Crim. E:03; People v. Robb, 215 P.3d 1253,

  1262-63 (Colo. App. 2009) (upholding this part of the reasonable

  doubt instruction).




                                    17
¶ 37   We see nothing wrong with the court’s attempt to distinguish

  the “beyond a reasonable doubt” standard from the “beyond a

  shadow of a doubt” phrase, popularized in television courtroom

  dramas.

¶ 38   But the court then told the jurors that the reasonable doubt

  standard for criminal convictions is “a standard that we use a lot of

  times,” which is simply untrue; and by telling jurors that their

  decision is no more consequential than choosing a doctor “or

  whatever,” the court improperly trivialized the prosecution’s burden

  of proof.

¶ 39   Few decisions that people make have the gravity of deciding

  whether to convict an accused person of a crime. See Robb, 215

  P.3d at 1262-63 (trial courts should emphasize “the kind of doubt

  that would make a person hesitate to act, rather than the kind on

  which he would be willing to act” (quoting Holland, 348 U.S. at

  140)); Commonwealth v. Ferreira, 364 N.E.2d 1264, 1273 (Mass.

  1977) (“[A]ll references to examples taken from the jurors’ lives

  should be avoided. . . . The degree of certainty required to convict

  is unique to the criminal law. We do not think that people


                                    18
  customarily make private decisions according to this standard nor

  may it even be possible to do so.”); see also, State v. Walker, 265

  P.3d 191, 196 (Wash. Ct. App. 2011) (prosecutor erroneously

  described the reasonable doubt standard as “a common standard

  that you apply every day” and compared it to having surgery and

  leaving children with a babysitter); cf. People v. Van Meter, 2018

  COA 13, ¶ 32 (concluding that prosecutor’s description of beyond a

  reasonable doubt standard using analogy to partially completed

  jigsaw puzzle with image of space shuttle was improper, but it did

  not amount to reversible plain error because, without the guidance

  provided in that judicial decision, impropriety of use of the analogy

  was not “so clear-cut that a trial judge should have been expected

  to avoid it without benefit of an objection” (quoting People v. Carter,

  2015 COA 24M-2, ¶ 58)); Camarigg, ¶ 50 (concluding that a

  prosecutor’s use of an analogy to filling in a jigsaw puzzle did not

  improperly quantify or trivialize the State’s burden to prove the

  defendant’s guilt beyond a reasonable doubt).

¶ 40   Because determining an accused person’s guilt beyond a

  reasonable doubt is such an extraordinary occurrence, subject to


                                    19
  an unusually stringent burden, we respectfully disagree with the

  division in Avila, ¶¶ 42-48, that it was not error for a trial court to

  liken the “beyond a reasonable doubt” standard to the decision one

  makes when buying produce. See Tibbels, ¶ 34 (noting that “the

  risk of lessening the burden of proof increases when analogies to

  everyday experiences are used to explain the concept of reasonable

  doubt” (citing Victor, 511 U.S. at 24 (Ginsburg, J., concurring in

  part and concurring in the judgment))).

¶ 41   Second, the judge’s commentary was part of a lengthy, highly

  emphasized, Socratic colloquy with individual prospective jurors. It

  cannot have failed to color the jurors’ perceptions of the

  prosecution’s burden. Thus, it is distinct from the “isolated”

  comment that deterred the supreme court from reversing the

  conviction in Johnson, ¶ 9.

¶ 42   Third, the judge’s commentary came at the beginning of trial,

  when prospective jurors were forming their first impressions of the

  case and of the task on which they were about to embark. We

  cannot conclude that jurors would have paid less heed to

  commentary on an issue as critical as “reasonable doubt” simply


                                     20
  because it was made at the beginning of trial, rather than at the

  end, when the jury was formally given the written instructions. Cf.

  Deleon v. People, 2019 CO 85 (reversing conviction because trial

  court failed to give a no-adverse-inference instruction about the

  defendant’s right to remain silent, as the defendant had requested,

  during final charge to jury).

¶ 43   Case law has relied on the principles of primacy and recency

  and their effect on memory and perception, and has recognized that

  those principles can be considered in determining whether to

  reverse a criminal conviction. See Domingo-Gomez v. People, 125

  P.3d 1043, 1052 (Colo. 2005) (“Rebuttal closing is the last thing a

  juror hears from counsel before deliberating, and it is therefore

  foremost in their thoughts.”); People v. Robinson, 2017 COA 128M,

  ¶ 36 (“[W]e . . . recognize, as have numerous scientists and

  academics, that principles of primacy may cause statements and

  arguments made early in a trial to have a disproportionately

  influential weight.” (first citing L. Timothy Perrin, From O.J. to

  McVeigh: The Use of Argument in the Opening Statement, 48 Emory

  L.J. 107, 124 (1999); then citing John B. Mitchell, Why Should the


                                     21
  Prosecutor Get the Last Word?, 27 Am. J. Crim. L. 139, 157-58

  (2000))), rev’d, 2019 CO 102; Dudley v. State, 951 P.2d 1176, 1180

  (Wyo. 1998) (“[W]e recognize[] the accepted psychological impact of

  the testimony of witnesses presented first or last under the theory

  of ‘primacy and recency.’” (quoting Whiteplume v. State, 841 P.2d

  1332, 1340 (Wyo. 1992))).

¶ 44   Thus, the fact that the judge’s description of the “beyond a

  reasonable doubt” standard came so early in the trial made it more

  likely that it would be memorable when it came time for the jury to

  apply the standard during deliberations.

¶ 45   And fourth, the court made a point of extracting a commitment

  from the juror to “hold the People to [the] burden” as the court had

  just described it — namely, “a standard that we use a lot of

  times . . . when we do important things in our lives, like buying a

  home, or choosing doctors, or whatever.” (Emphasis added.) As we

  have discussed above, the court’s description of the burden was not

  the exacting standard required by law. The choice of a doctor “or

  whatever” certainly does not have the same gravity as the decision

  about guilt beyond a reasonable doubt.


                                    22
¶ 46   Though the court extracted a promise from just one potential

  juror to hold the prosecution only to the burden as the court

  described it, this promise could not have failed to impress the

  judge’s defined standard on other jurors. And the juror who gave

  the promise to the court ultimately sat on the jury and deliberated

  to a verdict.

¶ 47   Jurors look to trial court judges as authoritative sources of the

  law, and usually, such confidence is properly placed. Given that

  the trial judge’s description of “reasonable doubt” was part of a

  lengthy and highly emphasized presentation to prospective jurors, it

  could have encouraged all of the jurors to rely on the judge’s

  incorrect interpretation of the law.

¶ 48   Therefore, unlike the trial court’s discussion of reasonable

  doubt in Johnson, the judge’s description here was not so “isolated

  and nonsensical,” Johnson, ¶ 9, as to overcome any concern that

  the jury would misapply the reasonable doubt standard. The trial

  court’s comments here were not isolated, and though incorrect, we

  cannot describe them as “nonsensical.”




                                    23
¶ 49        The judge’s extraction of the juror’s promise to apply the

  burden of proof as the judge incorrectly described it renders this

  case distinct from cases where appellate courts have declined to

  reverse convictions. And the court’s analogies to reasonable doubt

  here were more nebulous (buying a home, choosing doctors, “or

  whatever”) than those in Flynn and Tibbels, which were not found to

  require reversal. See Tibbels, ¶¶ 24-26 (likening reasonable doubt

  to whether one would hesitate to buy a house that has a

  “structurally significant” crack in the foundation); Flynn, ¶¶ 35-38

  (likening reasonable doubt to whether one could doubt if the

  courthouse would “stand for another 24 hours [even though there

  might be visible] cracks . . . in the foundation” and whether a

  juror’s mother might have gotten the juror’s date of birth wrong).

       3.    The Giving of a Proper Jury Instruction at the Close of Trial
                           Did Not Cure the Court’s Error

¶ 50        Even though, after three days of trial, the court provided the

  jury with a proper reasonable doubt jury instruction under COLJI-

  Crim. E:03, and told the jury that those instructions “contain the

  rules of law that you must apply to reach your verdict,” we conclude

  that the damage had already been done during voir dire, as

                                        24
  discussed above, by the trial court’s lessening of the prosecution’s

  burden of proof.

¶ 51   The jurors’ review, during deliberations, of the more formal

  language of the pattern “beyond a reasonable doubt” jury

  instruction would not have been sufficient to dislodge the judge’s

  memorable and implanted notion of the incorrect standard.

¶ 52   We conclude that this is so even though, before reading the

  stock jury instructions, the court told the jurors, “you must all

  follow the instructions as I give them to you” (emphasis added).

  Instead of vitiating the court’s error, this language reinforced that

  the judge himself was the authority on the law. In fact, the judge

  said, “It is my job to decide what rules of law apply to this case”

  (emphasis added), and jurors would have had no way of discerning

  stock jury instructions from those improperly described by the

  judge during voir dire. Cf. Flynn, ¶ 49 (trial court’s improper

  hypotheticals discussing reasonable doubt standard did not lower

  the burden of proof and did not constitute reversible error where

  “each of the hypotheticals here was discussed verbally, and only

  once”; none was mentioned again at any time during the


                                     25
  proceedings; the trial court read the correct definitions of beyond a

  reasonable doubt and presumption of innocence

  contemporaneously with the discussions; the court “repeatedly

  referred back to the appropriate standard definition of reasonable

  doubt”; and the correct instructions were again read to the jury

  after the close of evidence).

¶ 53   We note that, about eight months before Knobbe’s trial, this

  same trial court judge had been advised in remand instructions in

  an opinion from a division of this court not to analogize the concept

  of reasonable doubt “to decisions people make in their everyday

  lives” because “[s]uch analogies run the risk of impermissibly

  trivializing the jury’s task in determining [the] defendant’s guilt.”

  People v. Mortensen, slip op. at 12 (Colo. App. No. 12CA1096, Feb.

  19, 2015) (not published pursuant to C.A.R. 35(f)).

¶ 54   Because, in this case, the court’s improper description of the

  standard of proof lowered the prosecution’s burden of proving guilt,

  we conclude that the error was a structural error that requires

  reversal of the conviction. See Johnson, ¶ 8; see also People v.

  Kanan, 186 Colo. 255, 259, 526 P.2d 1339, 1341 (1974) (“Prejudice


                                     26
  to the defendant is inevitable when the court instructs the jury in

  such a way as to reduce the prosecution’s obligation to prove each

  element of its case beyond a reasonable doubt.”); People v. Owens,

  97 P.3d 227, 237-38 (Colo. App. 2004) (The court’s erroneous

  revised instruction “effectively reduced the prosecution’s burden of

  proof and permitted the jury to find the asportation element of

  second degree kidnapping based on legally insufficient grounds.”).

¶ 55   Deleon does not change the result we reach here. In Deleon,

  the supreme court addressed a trial court’s failure to properly

  instruct a jury on a defendant’s right to remain silent. There, the

  supreme court held that, because a trial court improperly failed at

  the close of trial to give a jury instruction on the defendant’s right

  to remain silent (i.e., not to testify), the error required reversal, even

  though, during jury voir dire, the court and counsel had properly

  emphasized that right. Deleon, ¶ 15.

¶ 56   True, in that case, the supreme court emphasized the

  importance of final jury instructions in ensuring a fair trial to a

  defendant, even though a proper instruction had been given during

  jury voir dire in that case. Id. at ¶ 27. But that explanation does


                                      27
  not convince us that the giving of a proper final reasonable doubt

  instruction in Knobbe’s case vitiates the error in the trial court’s

  initial instructions as to the meaning of “reasonable doubt.” The

  court in Deleon did not create an excuse for giving improper

  instructions during the jury voir dire phase of trial.

¶ 57   And, in Deleon, the supreme court said that the purpose of the

  trial court’s comment during voir dire about the defendant’s right

  not to testify “was to determine whether the potential jurors could

  act impartially and conscientiously apply the law, not to instruct the

  jury on the law itself.” Id. at ¶ 26 (emphasis added). As discussed

  above, we are convinced that the judge here was trying to instruct

  the jury during voir dire “on the law itself” — and improperly so.

¶ 58   Importantly, unlike in Deleon, in this case, a juror who

  deliberated to verdict had agreed to be bound by the incorrect

  burden of proof as described by the judge.

                     IV.   Presumption of Innocence

¶ 59   Defendant also argues that the trial court erred when,

  addressing jurors at the start of voir dire, the court gave its own

  interpretation of the presumption of innocence. Because we are


                                    28
  reversing the conviction based on the trial court’s improper

  description of the burden of proof, we need not address its

  description of the presumption of innocence. We say only that, as

  with the description of the burden of proof, it is not within the trial

  court’s purview to redefine the presumption of innocence for jurors.

       V.    The Court’s Instruction Addressing Kidnapping By Use of a
                                   Deadly Weapon

¶ 60        The prosecution charged Knobbe with second degree

  kidnapping under section 18-3-302(4)(a)(II) and (III). Knobbe

  argues that the court’s jury instruction failed to track the statutory

  language of subsections (II) and (III) because it omitted mention

  that, to convict him of kidnapping with a deadly weapon, the

  kidnapping had to be “accomplished by” the use of a deadly

  weapon. We agree.

¶ 61        Second degree kidnapping is elevated to a class 3 felony if

  “[t]he kidnapping is accomplished by the use of a deadly weapon or

  any article used or fashioned in a manner to cause a person to

  reasonably believe that the article is a deadly weapon” or “[t]he

  kidnapping is accomplished by the perpetrator representing verbally



                                        29
  or otherwise that he or she is armed with a deadly weapon.”

  § 18-3-302(4)(a)(II), (III) (emphases added).

¶ 62   An element of a sentencing enhancement, like a criminal

  offense, has to be proved to a jury beyond a reasonable doubt. See

  People v. Jamison, 220 P.3d 992, 995 (Colo. App. 2009). If, on

  retrial, the court again instructs the jury on this charge, it must

  instruct the jury that, to convict of this charge, the jury has to find

  that the kidnapping was “accomplished by” the use of a deadly

  weapon.

               VI.   Sex Offender Lifetime Supervision Act

¶ 63   Knobbe was sentenced under the Colorado Sex Offender

  Lifetime Supervision Act of 1998, sections 18-1.3-1001 to -1012,

  C.R.S. 2013. On appeal, he contends that the Act is

  unconstitutional. We see no reason to depart from the well-

  reasoned decisions of other divisions of this court that have

  consistently upheld the constitutionality of the Act. See, e.g.,

  People v. Sabell, 2018 COA 85, ¶ 47; People v. Relaford, 2016 COA

  99, ¶ 72; People v. Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250

  P.3d 668, 679 (Colo. App. 2010); People v. Villa, 240 P.3d 343, 359


                                     30
  (Colo. App. 2009); People v. Firth, 205 P.3d 445, 452 (Colo. App.

  2008); People v. Lehmkuhl, 117 P.3d 98, 108 (Colo. App. 2004);

  People v. Dash, 104 P.3d 286, 290-92 (Colo. App. 2004); People v.

  Oglethorpe, 87 P.3d 129, 133-36 (Colo. App. 2003); People v. Strean,

  74 P.3d 387, 393-95 (Colo. App. 2002).

   VII. Issues Not Addressed Because They May Not Arise on Retrial

       A.     Jury Instruction on Sexual Assault Sentence Enhancer to
                                 Kidnapping Charge

¶ 64        Knobbe asserts that the trial court incorrectly instructed the

  jury regarding the sexual assault sentence enhancer to the

  kidnapping offense. See § 18-3-302(3)(a) (providing that second

  degree kidnapping is a class 2 felony if the person kidnapped is a

  victim of a sexual offense pursuant to sections 18-3-401 to -418,

  C.R.S. 2019). According to Knobbe, the court’s instructions allowed

  the jury to find applicability of the sexual assault sentence

  enhancer to second degree kidnapping “even if the sexual assault

  occurred before the kidnapping began.” He asserts that the

  prosecution’s theory at trial was that Knobbe first sexually

  assaulted the victim and then kidnapped her by driving her into the

  mountains.

                                        31
¶ 65       Because we cannot anticipate whether the prosecution will

  advance a theory on retrial that this section applies merely because

  the victim was a victim of sexual assault, or whether it will, instead,

  advance a theory that the kidnapping preceded the sexual assault,

  we decline to address this argument.

  B.       Sentencing for Kidnapping Involving Sexual Assault and Crime
                        of Violence Sentence Enhancement

¶ 66       Knobbe asserts errors in the court’s sentencing decisions.

  Because we cannot tell whether the asserted sentencing errors will

  arise on retrial, and if so, whether they will arise in the same

  context, we decline to address them.

                               VIII. Conclusion

¶ 67       The judgment is reversed, and the case is remanded for a new

  trial.

           JUDGE PAWAR concurs.

           JUDGE DAILEY concurs in part and dissents in part.




                                      32
       JUDGE DAILEY, concurring in part, dissenting in part.

¶ 68   I dissent from the majority’s conclusion that the trial court’s

  comments in voir dire constituted structural error requiring

  reversal.

¶ 69   The majority holds that two of the court’s comments

  improperly trivialized the reasonable doubt standard. The two

  comments were:

              I don’t know how best to explain it. 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?

              THE JUROR: Yes, Your Honor, I can do that.

  (Emphases added.)

¶ 70   The comments were not given to the jury in writing.

¶ 71   I agree that the comments quoted above were problematic: the

  first because it trivialized the reasonable doubt standard, and the

  second not because it independently trivialized the standard but

  only because it could be perceived as incorporating the contents of
                                    33
the first comment. See People v. Tibbels, 2019 COA 175, ¶ 34

(“[T]he risk of lessening the burden of proof increases when

analogies to everyday experiences are used to explain the concept of

reasonable doubt[.]”); see also Tou Fue Yang v. State, No. A-11787,

2017 WL 838809, at *3 (Alaska Ct. App. Mar. 1, 2017) (unpublished

opinion) (“We have previously cautioned against using these types

of ‘daily-life’ analogies . . . , noting the general disapproval of such

analogies across various jurisdictions and the uniform concern that

such analogies often act to minimize the State’s burden of proof.”);

People v. Johnson, 9 Cal. Rptr. 3d 781, 783 (Cal. Ct. App. 2004)

(“We are not prepared to say that people planning vacations or

scheduling flights engage in a deliberative process to the depth

required of jurors or that such people finalize their plans only after

persuading themselves that they have an abiding conviction of the

wisdom of the endeavor. Nor can we say that people make such

decisions while aware of the concept of ‘beyond a reasonable

doubt.’”); Holmes v. State, 972 P.2d 337, 343 (Nev. 1998)

(“[C]ommentary analogizing reasonable doubt with major life

decisions such as buying a house or changing jobs is improper


                                    34
  because these decisions involve elements of uncertainty and risk-

  taking and are wholly unlike the kinds of decisions that jurors must

  make in criminal trials.”).

¶ 72   But I do not agree that those comments constituted an

  “instruction” that, under Sullivan v. Louisiana, 508 U.S. 275 (1993),

  could constitute structural error requiring automatic reversal. In

  my view, a court’s comments during voir dire are much less formal

  than — and, consequently, do not attain a similar status to —

  specific instructions by the court as to the applicable law. See

  Tibbels, ¶ 36 (“[T]he illustration was unlike a formal instruction of

  law.”); People v. Flynn, 2019 COA 105, ¶ 44 n.5 (“We do not believe

  that every comment made by a trial court to the jury panel during

  voir dire is automatically an instruction.”); People v. Boyd, 2015

  COA 109, ¶ 12 (opining that the court’s comments during voir dire

  discussions were not an instruction), aff’d, 2017 CO 2; cf. People v.

  Medina, 906 P.2d 2, 30–31 (Cal. 1995) (“[E]rrors or misconduct

  occurring during jury voir dire, prior to the introduction of evidence




                                    35
  or the giving of formal instructions, are far less likely to have

  prejudiced the defendant.”). 1

¶ 73   The majority, of course, takes a different view. It relies on

  Johnson v. People, 2019 CO 17, ¶ 7, where the supreme court,

  without explanation, treated a trial court’s voir dire comments

  about the “hesitate to act” part of the reasonable doubt standard as

  an instruction. The supreme court did not, however, have to

  determine the character of the court’s comments, inasmuch as it

  concluded that the particular comments would not have misled the

  jury anyway. Id. at ¶ 9.

¶ 74   More telling than Johnson, I think, is the supreme court’s

  more recent decision in Deleon v. People, 2019 CO 85. In Deleon,

  the supreme court reversed a defendant’s conviction because the

  trial court never instructed the jury, as it indicated it would, at the

  close of the evidence that the jury could not draw an adverse

  inference from the defendant’s failure to testify. Id. at ¶ 29. The

  court had told the jury this during voir dire. Id. at ¶ 4. But the



  1 That the court’s comments were not meant as instructions is
  reflected in the ambivalent (i.e., “I don’t know how best to explain
  it”) manner in which it began its remarks.
                                     36
supreme court took great pains to explain why the trial court’s voir

dire comments did not constitute an instruction:

           [T]hey were given during the early stages of the
           trial process; they were made with the purpose
           of determining potential juror mindset; they
           indicated that the jury would receive further
           instructions later in the trial; and when the
           instructions were read prior to closing
           arguments, the jury was told by the judge that
           the instructions were the law they must follow.

Id. at ¶ 15.

     Elucidating further, the court said:

           [T]he trial court’s initial remarks failed to
           constitute an effective instruction based on
           both their timing and their content. To be
           sure, the trial court did state that [the
           defendant] had “no obligation to present any
           evidence or testimony at all. [He] does not
           have to testify. And if he chooses not to testify,
           you cannot hold it against him in any way that
           he did not.” But it made that comment during
           voir dire. That is, the purpose of the comment
           was to determine whether the potential jurors
           could act impartially and conscientiously apply
           the law, not to instruct the jury on the law
           itself. . . .

           Additionally, the content of the trial court’s
           statements was not definitive. Before opening
           statements, the trial court told the jury that
           “[a]ll the evidence and law that you will have to
           decide the case will be presented to you . . .
           That evidence and the Court’s instructions
                                  37
             should be the only basis for your verdict.”
             (Emphasis added.) Then, near the end of trial,
             the trial court told the jury that “[the court]
             will now instruct you on the law which you
             must apply in order to reach your verdict. . . .
             You must follow all of the rules as I explain
             them to you.”. . . In sum, the trial court told
             the jury that it would eventually explain the
             law that the jury must apply, but the court
             then failed to instruct the jury about the law
             regarding the right to remain silent.

  Id. at ¶¶ 26-27 (footnote omitted).

¶ 75   So, the supreme court in Johnson, without discussion, labeled

  voir dire comments by a judge as an instruction, but in DeLeon,

  after considerable discussion, it rejected that same label for the

  same type of comments. Because, to me, DeLeon (due to its

  discussion) is the more persuasive of the two, I conclude (consistent

  with other decisions of this court, cited earlier) that the court’s voir

  dire comments did not constitute an “instruction” subject to

  structural error review.

¶ 76   Indeed, another division of this court has explicitly rejected

  “structural error” analysis in connection with a trial court’s

  “assume[d]” improper use of a reasonable doubt analogy during voir

  dire. People v. Baca, 2015 COA 153, ¶¶ 11-13. And, like other


                                     38
  divisions of this court, I would analyze the impact of Knobbe’s

  unpreserved claim of error under a plain error standard of review.

  See id. at ¶ 12; see also Flynn, ¶ 39; People v. Carter, 2015 COA

  24M-2, ¶¶ 50-51 (applying plain error review to “jigsaw puzzle”

  comments made by the prosecutor and court during voir dire).

¶ 77   To qualify as plain error, an error must be both “obvious and

  substantial.” Hagos v. People, 2012 CO 63, ¶ 14. For plain error

  purposes, an error is “obvious” if it contravenes (1) a clear statutory

  command; (2) a well-settled legal principle; or (3) Colorado case law.

  Scott v. People, 2017 CO 16, ¶ 16. For plain error purposes, an

  error is “substantial” if it is “seriously prejudicial” — that is, if it so

  undermines the fundamental fairness of the trial as to cast serious

  doubt on the reliability of the defendant’s conviction. People v.

  Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.

¶ 78   I assume, for purposes of this appeal, that the court’s error

  was “obvious.”2 The error was not, however, “substantial.”



  2 I do so without determining whether “obviousness” of error is
  measured as of the time of trial or the time of appeal, see
  Henderson v. United States, 568 U.S. 266 (2013) (majority measured
  it as of the time of appeal; three-member dissent would measure it
  as of the time of trial). Even though there was no published
                                       39
¶ 79   The court’s two comments were made in the midst of a lengthy

  (i.e., approximately thirty-five-transcript-page) colloquy the court

  had with prospective jurors covering a number of topics, to wit: (1)

  the specific charges in the case; (2) decisions are to be based on

  nothing but the evidence and the law; (3) a defendant’s

  presumption of innocence; (4) the prosecution always has the

  burden of proof; (5) sentencing is for the court, not the jury, to

  decide; (6) the prosecution’s “beyond a reasonable doubt” burden of

  proof; (7) the judge determines the law, the jury the facts; (8) jurors

  should not be concerned with what happens at bench conferences;

  (9) witness credibility is for the jury to determine; (10) a trial is not

  a contest between attorneys; (11) judging guilt or innocence is not




  Colorado case as of the time of trial specifically holding comments
  of the type made here improper, published Colorado cases had
  recognized the potential impropriety of similar comments, see
  People v. Marko, 2015 COA 139, ¶¶ 208-11 (no plain error in
  prosecution’s analogizing reasonable doubt to people’s decisions to
  drive vehicles), aff’d, 2018 CO 97; People v. Cevallos-Acosta, 140
  P.3d 116, 123 (Colo. App. 2005) (no plain error in prosecution’s use
  of analogy to “important decisions such as buying a house” to
  explain reasonable doubt), and courts from other jurisdictions had
  uniformly held such comments improper. See People v. Pollard,
  2013 COA 31M, ¶ 41 & n.3 (considering such circumstances in
  determining the “obviousness” of error).
                                      40
  the same as judging the person; and (12) the jurors must take and

  apply the law as given to them — “word for word” — “in the

  instructions of law that it would receive at the end of the case.”

¶ 80   I “acknowledge the possibility that the jury might have viewed

  the concept of reasonable doubt through the lens of the court’s . . .

  illustration[s].” Tibbels, ¶ 35. But “[s]peculation does not suffice to

  demonstrate plain error.” Ujaama, ¶ 62 (quoting State v. Clinkscale,

  911 N.E.2d 862, 870 (Ohio 2009)); see Jones v. United States, 527

  U.S. 373, 394-95 (1999) (“Where the effect of an alleged error is so

  uncertain, a defendant cannot meet his burden of showing that the

  error actually affected his substantial rights.”).

¶ 81   Relying on the concept of “primacy,” the majority asserts that

  it is “more likely” that the jury erroneously evaluated the reasonable

  doubt standard in light of the examples mentioned by the court

  because those examples “came so early” in the trial. Supra ¶ 45.

¶ 82   The majority, however, overlooks, four things: (1) the judge’s

  comments on the reasonable doubt standard were not the first,

  second, third, fourth, or even fifth matter mentioned in the court’s




                                     41
lengthy colloquy; (2) over three days of intervening events at trial 3

passed between the court’s comments and the time the court

formally and properly instructed the jury verbally and in writing at

the end of the case; (3) the primacy effect, upon which the majority

relies, “is often contradicted by the ‘recency effect,’ which states

that people will remember, and be influenced by, the last

information to which they are exposed,” Kathryn M. Stanchi, The

Power of Priming in Legal Advocacy: Using the Science of First

Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 346

(2010); 4 and (4) the last information to which the jury was exposed

regarding the definition of reasonable doubt was the proper oral

and written instructions of the court. Under these circumstances,




3E.g., voir dire by counsel, opening statements, and presentation of
evidence by both the prosecution and defense.

4 In fact, “[i]n the jury trial context, interestingly, recency seems to
be far more influential, and studies suggest that trial lawyers for
both sides should present their material in a climactic order with
the most important material at the end.” Kathryn M. Stanchi, The
Power of Priming in Legal Advocacy: Using the Science of First
Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 347 (2010);
cf. Domingo-Gomez v. People, 125 P.3d 1043, 1052 (Colo. 2005)
(rebuttal closing “foremost” in jurors’ minds because it is the last
thing they hear).
                                   42
  it is purely speculative to infer that the court’s brief and isolated

  voir dire comments on reasonable doubt likely so infected the jury’s

  mindset that it was unable to properly apply the reasonable doubt

  standard.

¶ 83   If “[i]n the context of the entire record . . . the trial court

  properly instructed the jury on the law — even with ‘objectionable

  language . . . [in] the trial court’s elaboration of the reasonable

  doubt instruction’ — then there is no violation of due process.”

  Johnson, ¶ 14 (quoting People v. Sherman, 45 P.3d 774, 779 (Colo.

  App. 2001)). Thus, when the trial court uses an illustration to

  explain the concept of reasonable doubt, we consider the

  illustration’s nature, scope, and timing in determining whether its

  use violated due process. See People v. Villa, 240 P.3d 343, 357

  (Colo. App. 2009).

¶ 84   Here, the court’s comments were made in voir dire; they were

  brief and but a small part of an otherwise lengthy colloquy covering

  numerous topics; they were made not at the outset nor at the end of

  that colloquy, but somewhere near the middle of it; insofar as I can

  determine, they were no more emphasized than any other part of


                                      43
  the lengthy colloquy; neither the trial court nor the prosecutor

  referenced the erroneous remarks again; the court gave the jury the

  proper instruction on the reasonable doubt standard, in accordance

  with the Model Jury Instructions, orally and in writing, before

  deliberations; and, in the absence of evidence to the contrary, we

  ordinarily presume the jury followed the court’s instruction.

¶ 85   Under the circumstances, there is not, in my view, a

  reasonable likelihood that the jurors selected for trial misapplied

  the reasonable doubt standard,5 and the court’s comments neither

  jeopardized the fairness of the trial nor cast serious doubt on the

  reliability of the verdict. Consequently, no error — plain or

  otherwise — requiring reversal occurred here. See Johnson, ¶ 18

  (“We note that the trial court provided the [contested] instruction to

  the jury verbally and only once. It was not mentioned or referenced

  again throughout the entirety of the proceedings, including closing




  5 This “reasonable likelihood that the jury applied the contested
  instruction in an unconstitutional manner” test was utilized by the
  supreme court in Johnson v. People, 2019 CO 17, to determine
  whether the court’s comments on the “hesitate to act” part of the
  reasonable doubt instruction lowered the prosecution’s burden of
  proof in violation of due process. Id. at ¶¶ 14-15.
                                    44
  arguments.”); Baca, ¶¶ 13-14 (concluding that no plain error

  occurred in part because the improper comments were “isolated,”

  and the court twice read the proper reasonable doubt instruction to

  the jury and provided it with a written copy); People v. Estes, 2012

  COA 41, ¶ 12 (finding the risk of prejudice from improper comments

  during voir dire was “mitigated by the court’s written jury

  instructions and other statements correctly explaining the

  applicable burdens”).

¶ 86   Because the court’s comments “trivializing” the reasonable

  doubt standard during voir dire are not on par with a “defective”

  instruction defining reasonable doubt, and because, under the

  circumstances, the court’s comments were not plainly erroneous, I

  would affirm Knobbe’s judgment of conviction.




                                   45
