Peo v. Warren

23CA1050 Peo v Warren 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1050
Adams County District Court No. 21CR2305
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Warren,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Martinez* and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

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

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Paul Warren, appeals his conviction for aggravated

motor vehicle theft. We affirm.

I. Background

¶2 L.E.M. hired Warren to help install satellite equipment

throughout the state and loaned him his truck with the

understanding that the truck would be used for work purposes and

returned daily.

¶3 A couple of months later, Warren failed to return the truck.

L.E.M. learned Warren was using the truck to travel to Alabama for

a family matter and reported the truck stolen.

¶4 Warren was charged with aggravated motor vehicle theft and

theft of the tools stored in the truck. A jury convicted him of

aggravated motor vehicle theft.

II. Discussion

¶5 Warren raises two arguments on appeal. First, he contends

the district court erred by giving the 2022 Colorado Model Criminal

Jury Instruction on reasonable doubt. Second, he asserts the court

erred by denying his motion for dismissal for discovery violations by

the prosecution. We affirm.

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A. Reasonable Doubt Jury Instruction

¶6 Warren argues the court’s reasonable doubt jury instruction

lowered the prosecution’s burden of proof, infringed on his

presumption of innocence, and shifted the burden of proof to him.

We disagree.

1. Additional Background

¶7 In 2022, the Colorado Supreme Court Model Criminal Jury

Instructions Committee substantially revised the reasonable doubt

instruction to read in part:

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you should find the
defendant guilty of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.
2
COLJI-Crim. E:03 (2022).

¶8 Guided by the 2022 model jury instruction, the district court

gave the following reasonable doubt instruction:

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

If you find from the evidence that each and
every element of a crime has been proven
beyond a reasonable doubt, you should find
the defendant guilty of that crime. If you find
from the evidence that the prosecution has
failed to prove any one or more of the elements
of a crime beyond a reasonable doubt, you
should find the defendant not guilty of that
crime.

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¶9 Warren objected and requested the court use the 2021 model

instruction1 because the 2022 version was untested and lessened

the prosecution’s burden. The district court declined, explaining

that the new instruction repeatedly emphasized that the

prosecution carried the burden of proof.

2. Standard of Review

¶ 10 The United States Constitution “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.” In

re Winship, 397 U.S. 358, 364 (1970). The reasonable doubt

standard gives “concrete substance” to the presumption of

innocence afforded to all criminal defendants. Id. at 363.

1 The 2021 Colorado Model Criminal Jury Instructions defined

“reasonable doubt” as

a doubt based upon reason and common sense
which arises from a fair and rational consideration
of all of the evidence, or the lack of evidence, in the
case. It is a doubt which is not a vague, speculative
or imaginary doubt, but such a doubt as would
cause reasonable people to hesitate to act in
matters of importance to themselves.

COLJI-Crim. E:03 (2021).
4
¶ 11 We review de novo whether the district court properly

instructed the jury on the law. Tibbels v. People, 2022 CO 1, ¶ 22.

If an instruction lowers the “prosecution’s burden of proof below the

reasonable doubt standard,” it “constitute[s] structural error and

require[s] automatic reversal.” Id.

¶ 12 In determining whether an instruction lowered the burden of

proof, we apply a “functional test, asking whether there is a

reasonable likelihood that the jury understood a contested

instruction, in the context of the instructions as a whole and the

trial record, to allow a conviction based on a standard lower than

beyond a reasonable doubt.” Id. at ¶ 36; see also People v.

Schlehuber, 2025 COA 50, ¶13.

¶ 13 Model instructions, while not “‘a safe harbor that insulates

instructional error from reversal,’ have been approved in principle

by our [supreme] court and serve as beacon lights to guide trial

courts.” Galvan v. People, 2020 CO 82, ¶ 38 (citations omitted).

Thus, if the instructions as a whole correctly inform the jury of the

law, the district court has “broad discretion to determine the form

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and style of jury instructions.” Day v. Johnson, 255 P.3d 1064,

1067 (Colo. 2011).

3. Analysis

¶ 14 Warren challenges three aspects of the 2022 model jury

instruction as given by the district court: (1) its failure to instruct

the jury it could consider the “lack of evidence”; (2) its equating of

reasonable doubt with “a real possibility that the defendant is not

guilty” and its use of the phrase “firmly convinced” to define proof

beyond a reasonable doubt; and (3) its removal of the phrase

“hesitate to act” from the 2021 model instruction. None of these

concerns merit reversal.

a. Lack of Evidence

¶ 15 The 2022 model instruction removed the phrase “lack of

evidence,” COLJI-Crim. E:03 (2021), and instructed the jury that in

determining whether the defendant is guilty beyond reasonable

doubt, “all the evidence” should be considered. COLJI-Crim. E:03

(2022). Warren claims this change undercuts the presumption of

innocence by not informing the jurors they can consider both the

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“lack of evidence” and “all the evidence,” thus lowering and shifting

the prosecution’s burden of proof.2

¶ 16 Courts have recognized, though, that the concept of

reasonable doubt inherently invites jurors to consider missing

evidence. Schlehuber, ¶ 21; see United States v. Rogers, 91 F.3d 53,

56-57 (8th Cir. 1996); see also United States v. Petty, 856 F.3d

1306, 1311 (10th Cir. 2017). Moreover, the lack of evidence on an

issue means the prosecution failed to meet its burden. See

Schlehuber, ¶¶ 21-22; see also Petty, 856 F.3d at 1311 (“Any

reasonable juror would understand from the instruction’s wording

that the Government must present evidence sufficient to establish

Defendant’s guilt beyond a reasonable doubt and that a failure to

present evidence sufficient to meet its burden must result in

Defendant’s acquittal.”).

¶ 17 Divisions of this court have also rejected Warren’s argument.

See Schlehuber, ¶ 19 (“[T]he omission of this phrase from the

2 The reasonable doubt model jury instruction was again amended

in 2023 to state, “A reasonable doubt can be based on the evidence
presented or the lack of evidence presented.” COLJI-Crim. E:03
(2023). The addition of this language, however, does not affect our
analysis.
7
reasonable doubt instruction is not structural error.”); People v.

Melara, 2025 COA 48, ¶ 24. We conclude that, read as a whole, the

instruction adequately informed the jury of the law. See

Schlehuber, ¶ 22.

¶ 18 In addition, we agree with the Schlehuber division that while it

is better for a district court to instruct the jury explicitly that it may

consider the lack of evidence, a court does not err by not doing so.

Id. at ¶ 20.

b. Firmly Convinced and Real Possibility

¶ 19 Next, Warren argues the instruction erroneously defined

reasonable doubt as a “real possibility that the defendant is not

guilty” and that proof beyond reasonable doubt is proof that leaves

you “firmly convinced.” He contends this language creates

confusion. Addressing both phrases together, we disagree.

¶ 20 These phrases have been consistently approved by courts as

an accurate expression of the reasonable doubt standard. See

Petty, 856 F.3d at 1310 (“[T]he ‘firmly convinced’ language,

juxtaposed with the insistence that a jury must acquit in the

presence of a ‘real possibility’ that the defendant is not guilty, is a

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correct and comprehensible statement of the reasonable doubt

standard.”) (citation omitted); see Victor v. Nebraska, 511 U.S. 1,

24-25, 27 (1994) (Ginsburg, J., concurring in part and concurring

in the judgment) (endorsing a similar definition as “surpass[ing]

others . . . in stating the reasonable doubt standard succinctly and

comprehensibly”). Divisions of this court have also approved both

phrases as an “accurate statement of the law.” Schlehuber, ¶ 30

(quoting Melara, ¶ 30). We, too, conclude that both phrases

represent an accurate statement of the law.

¶ 21 Warren points us to cases that have disapproved of the

language. See United States v. Porter, 821 F.2d 968, 973 (4th Cir.

1987); United States v. McBride, 786 F.2d 45, 52 (2d Cir. 1986).

But even then, those courts did not deem the language to be a

reversible error, Schlehuber, ¶ 30 n.4, and both cases predate

Justice Ginsburg’s concurrence in Victor v. Nebraska, which

endorsed such an instruction. See Victor, 511 U.S. at 27 (Ginsburg,

J., concurring in part and concurring in the judgment).

¶ 22 As the division in Schlehuber explained, “[t]he first — ‘firmly

convinced’ — describes what it means to have no reasonable

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doubt,” and “[t]he second — ‘real possibility’ — contrasts that with

what it means to have a reasonable doubt.” Schlehuber, ¶ 33. In

this case, “the jury could either be ‘firmly convinced’ of [Warren’s]

guilt (and find him guilty) or ‘think there is a real possibility’ that

[Warren] was not guilty (and find him not guilty).” Id.

c. Hesitate to Act

¶ 23 Finally, we reject Warren’s contention that the removal of the

“hesitate to act” language risks lowering the burden of proof. While

Warren points to other courts that have previously approved this

language, he fails to state why failing to include it is error. See

Schlehuber, ¶ 28; see also Victor, 511 U.S. at 20.3

¶ 24 The exclusion of the phrase “hesitate to act” in the model

reasonable doubt instruction was, in part, a response to criticisms

that it led some courts to make improper analogies that lowered the

burden of proof. COLJI-Crim. E:03 cmt. 1 (2024); see also

3 The “hesitate to act” analogy is misplaced because decisions

people make in their lives “generally involve a very heavy element of
uncertainty and risk-taking” and are “unlike the decisions jurors
ought to make in criminal cases.” Victor, 511 U.S. at 24-25
(Ginsburg, J., concurring in part and concurring in the judgment)
(citation omitted).
10
Schlehuber, ¶ 27. We agree with the Schlehuber division; “so long

as the instruction otherwise correctly defines the reasonable doubt

standard,” we do not find that the absence of the “hesitate to act”

phrase constitutes error. Schlehuber, ¶ 28.

¶ 25 We hold the reasonable doubt instruction neither lowered nor

shifted the burden of proof, nor did it undermine Warren’s

presumption of innocence. Although we conclude the jury

instruction was sufficient, we do not opine about whether the 2021

Colorado Model Criminal Jury Instruction or the 2022 version

provides the better description of the burden of proof.

B. Discovery Violations

¶ 26 Warren also contends the district court abused its discretion

by denying his motion to dismiss based on the prosecution’s

repeated discovery violations. We discern no abuse of discretion.

1. Additional Background

¶ 27 Throughout the course of the case, Warren raised multiple

Crim. P. 16 issues:

• January 27, 2023: Warren raised a potential Rule 16

violation based on the prosecution’s late disclosure —

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just one day earlier — of an interview conducted with

Mitchell. The district court found no violation.

• January 31, 2023: Warren moved to dismiss for Rule 16

violations, reiterating previous concerns and asserting

the prosecution had delayed disclosing fifteen pages of

text messages between Warren and Mitchell. The

prosecution conceded the discovery violation. The

district court agreed a Rule 16 violation had occurred but

concluded it was not willful. As a remedy, the district

court reset trial within the existing speedy trial deadline.

• February 8, 2023: Warren filed a second motion to

dismiss, citing ongoing violations of Rule 16. The day

before, he had received notice that the lead detective had

been charged with a DUI. Warren argued that, as this

was the third instance of untimely discovery and it

involved “critical impeachment information,” dismissal

was warranted. The district court found a Rule 16

violation, noting the late disclosure deprived Warren of

adequate time to investigate, compounding the prejudice.

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The district court concluded the appropriate remedy that

best served the purposes of Rule 16 was to exclude the

detective’s testimony.

¶ 28 Warren argues this pattern of untimely disclosures

demonstrates neglect — if not willful violations — and the district

court’s decision not to dismiss was unreasonable and unfair.

2. Standard of Review

¶ 29 We review a district court’s rulings on discovery issues and

sanctions for abuse of discretion. People v. Tippet, 2023 CO 61,

¶ 34; see People v. Daley, 97 P.3d 295, 298 (Colo. App. 2004) (“The

choice of an appropriate sanction for a violation of a discovery rule

lies within the sound discretion of the trial court.”). We will reverse

a court’s discovery sanction only when it is “manifestly arbitrary,

unreasonable, or unfair.” Tippet, ¶ 35 (quoting People v. Castro,

854 P.2d 1262, 1265 (Colo. 1993)).

3. Analysis

¶ 30 Crim. P. 16 requires the prosecution to make certain material

and information in possession or control available “as soon as

practicable” but not later than twenty-one days after a defendant’s

first appearance. Crim. P. 16(I)(b)(1). Courts have recognized the
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purpose of Rule 16 “is to advance the search for truth” and to deter

discovery-related misconduct. People v. Dist. Ct., 793 P.2d 163, 168

(Colo. 1990); see also People v. Cobb, 962 P.2d 944, 949 (Colo.

1998); People v. Lee, 18 P.3d 192, 196 (Colo. 2001).

¶ 31 To remedy a Rule 16 violation, a court must strike a balance

between “protecting the integrity of the truth-finding process and

deterring discovery-related misconduct.” Lee, 18 P.3d at 196.

Courts must consider several factors when fashioning discovery

sanctions: “(1) the reason for and degree of culpability associated

with the violation; (2) the extent of resulting prejudice to the other

party; (3) any events after the violation that mitigate such prejudice;

(4) reasonable and less drastic alternatives to exclusion; and (5) any

other relevant facts.” Tippet, ¶ 37 (quoting Cobb, 962 P.2d at 949).

¶ 32 Here, we conclude the district court properly considered these

factors in determining the appropriate sanctions for the Rule 16

violations. Specifically, it found that, in both Rule 16 violations, the

prosecution acted in good faith and that neither discovery violation

was willful. In one instance, the prosecution conceded that a

discovery violation had occurred and that Warren was entitled to a

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timely notification. Further, in excluding the testimony of the

detective, the district court noted the need to balance the prejudice

that occurred against the need to find the least severe sanction to

effectuate procedural fairness.

¶ 33 Still, Warren argues the sanctions the district court issued

were insufficient in light of the prosecution’s repeated untimely

disclosures. However, the exclusion of the detective’s testimony

was more than sufficient. See People v. Whittington, 2024 CO 65, ¶

20 (“[W]e have recently emphasized that a court should generally

avoid excluding evidence as a sanction because exclusion is a

drastic remedy that may affect the outcome of the trial, provide a

windfall to the party against whom the evidence would have been

offered, or otherwise hinder the search for the truth.”). As the

district court explained, the prejudice could not be cured by way of

continuance due to the speedy trial deadline. Here, considering the

totality of the circumstances, striking the detective’s testimony was

the least severe sanction available. See Lee, 18 P.3d at 198 (“[T]he

exclusion of evidence would have been appropriate only where a

15
less severe sanction, such as a continuance, would be inadequate.”

(citing Dist. Ct., 793 P.2d at 168-69)).

¶ 34 For these reasons, the district court did not abuse its

discretion and appropriately remedied the Rule 16 violations.

III. Disposition

¶ 35 The judgment is affirmed.

JUSTICE MARTINEZ and JUDGE TAUBMAN concur.

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