Peo v. Harris

23CA1252 Peo v Harris 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1252
Delta County District Court No. 22CR178
Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth Lee Harris,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE GROVE
Harris and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kenneth Lee Harris, appeals the judgment of

conviction entered on a jury verdict finding him guilty of felony

driving under the influence (DUI), careless driving, failing to stop at

a stop sign, following too closely, and failing to drive in a single

lane. We affirm.

I. Background

¶2 The jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 In October 2022, a patrol officer saw a car roll through a stop

sign, accelerate onto the highway, tail another car, and then drift

outside of lane markers twice. The officer initiated a traffic stop.

He approached the car, smelled alcohol, and observed an empty

“shooter”-sized bottle in the car’s cup holder and an unopened case

of beer on the passenger-side floorboard.

¶4 The officer asked the driver, Harris, if he had been drinking.

Harris responded he had taken two shots an hour prior and was

“over the legal limit.” Harris took a roadside sobriety test but failed

to follow directions for some of the maneuvers. He did not respond

to the officer’s request to take a blood alcohol or Breathalyzer test to

determine his level of intoxication. The officer interpreted Harris’s

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silence as a refusal. Based on his observations, the officer arrested

Harris.

¶5 A jury convicted Harris of the counts listed above. Because

the trial judge had previously supervised Harris in treatment court

for a 2017 DUI conviction, he recused himself for Harris’s

sentencing. The new judge sentenced Harris to a term of four years

in the custody of the Department of Corrections.

¶6 Harris appeals, arguing that the district court erred by

(1) failing to give adequate jury instructions on reasonable doubt

and (2) providing flawed instructions concerning Harris’s purported

refusal to provide a blood or breath sample when determining

whether he was guilty of the alcohol-related charges.1 Harris

further contends that reversal is required because (3) the trial judge

was actually biased against him.

II. Jury Instruction on Reasonable Doubt

¶7 Harris asserts that the district court reversibly erred by giving

the 2022 Colorado model jury instruction on reasonable doubt. He

1 Harris also argued that the district court erred when it admitted

extrinsic evidence of uncharged criminality after the prosecution
allegedly introduced Harris’s full driving record. However, Harris
later withdrew this argument.

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argues that this instruction impermissibly lowered the

prosecution’s burden of proof, undercut the presumption of

innocence, and shifted the burden of proof to him. We disagree.

A. Additional Facts

¶8 Before 2022, the Colorado model jury instruction defined

reasonable doubt as follows:

Reasonable doubt means 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). That instruction has been approved by

Colorado courts. See, e.g., People v. Alvarado-Juarez, 252 P.3d

1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-

63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25

(urging courts to adhere to “long-established pattern instructions”).

¶9 In 2022, the model instruction was substantially revised to

read as follows:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect

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by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

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.

COLJI-Crim. E:03 (2022).

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¶ 10 The district court in this case gave the 2022 version of the

instruction verbatim. Harris objected, claiming that the new

instruction misrepresented the concept of reasonable doubt and

shifted the burden of proof “on the defense to prove that he’s

innocent.” He requested that the court give the previous version of

the instruction or refrain altogether from instructing the jury on

“reasonable doubt,” pointing out that the 2022 instruction had also

not yet been upheld on appeal.

¶ 11 Noting that the 2022 model instruction had been approved by

the supreme court’s Model Criminal Jury Instructions Committee,

the district court denied Harris’s requests and provided the

instruction verbatim to the jury.

B. Analysis

¶ 12 Harris contends that the 2022 model instruction on

reasonable doubt lowers the prosecution’s burden of proof in

several different ways, and that the district court’s decision to give

it in this case amounted to structural error. See Tibbels, ¶ 25.

¶ 13 Two divisions of this court have recently considered similar

challenges to the constitutionality of the 2022 model instruction on

reasonable doubt. See People v. Melara, 2025 COA 48, People v.

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Schlehuber, 2025 COA 50. Both divisions concluded that the

instruction did not impermissibly lower the prosecution’s burden of

proof and therefore was not structural error.

¶ 14 The arguments raised in Schlehuber are nearly identical to

those that Harris advances in this case. Because we agree with the

Schlehuber division’s reasoning, we follow it here. In brief, we

conclude as follows:

• The 2022 model jury instruction’s failure to direct the

jury that it could consider “the lack of evidence” does not

lower the prosecution’s burden of proof because the

instructions as a whole inform the jury that “if the

prosecution fails to present sufficient evidence of guilt, it

will not have met its burden.” Schlehuber, ¶¶ 19, 22; see

also Melara, ¶ 24.

• The omission of the “hesitate to act” phrase that

appeared in the previous model instruction clarifies,

rather than confuses, the reasonable doubt standard,

and makes it less likely that courts or jurors will rely on

misleading analogies in an attempt to further explain the

standard. See Schlehuber, ¶ 27; see also Victor v.

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Nebraska, 511 U.S. 1, 24-25 (1994) (Ginsburg, J.,

concurring in part and concurring in the judgment).

• Defining reasonable doubt as a “real possibility” that the

defendant is not guilty and proof beyond a reasonable

doubt as proof that leaves jurors “firmly convinced” of the

defendant’s guilt is consistent with similar language

approved by federal courts; the two phrases “work

together to give the jury a complete picture of the

reasonable doubt standard.” Schlehuber, ¶ 33.

• Considering the reasonable doubt instruction as a whole

and “in the context of the instructions as a whole and the

trial record,” we perceive no cumulative error because

there is not a reasonable likelihood that the instruction,

as given by the district court in this case, would “‘allow a

conviction based on a standard lower than beyond a

reasonable doubt.’” Id. at ¶ 13 (quoting Tibbels, ¶ 36).

III. Instruction on Refusal to Undergo Chemical Testing

¶ 15 Harris contends that the district court erred by instructing the

jurors that they could consider Harris’s refusal to take a blood or

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breath alcohol test when determining whether he was guilty of any

of the alcohol-related charges. We are not persuaded.

A. Additional Facts

¶ 16 The court provided the jury with the following instruction

regarding Harris’s lack of response to the officer’s request for

chemical testing:

You are instructed that any person who drives
any motor vehicle in the State of Colorado may
be required to submit to a chemical test for the
purpose of determining the alcoholic or drug
content of his or her breath or blood. If a
person refuses to submit to such chemical
test, then the jury may consider such refusal
along with all other competent evidence in
determining the defendant’s guilt or innocence.

If you find that the defendant refused to take a
chemical test of the defendant’s blood or
breath, you may consider this refusal along
with other evidence in determining whether the
defendant is guilty of the offense of Driving
Under the Influence (3 or more priors), Driving
While Ability Impaired (3 or more priors),
Driving Under the Influence, or Driving While
Ability Impaired.

B. Applicable Law and Standard of Review

¶ 17 Although the trial court has broad discretion to determine the

form and style of jury instructions, “instructions that emphasize

specific evidence are generally disfavored.” People v. Garcia, 2021

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COA 65, ¶ 46, aff’d, 2023 CO 41. We review a court’s decision to

give a particular jury instruction for abuse of discretion. People v.

Hoover, 165 P.3d 784, 802 (Colo. App. 2006).

¶ 18 Where, as here, defense counsel did not object to an

instruction challenged on appeal, we will reverse only if the

instruction amounts to plain error. People v. Garcia, 28 P.3d 340,

344 (Colo. 2001). Plain error is “obvious and substantial,” People v.

Stewart, 55 P.3d 107, 120 (Colo. 2002), and will not lead to reversal

unless it is seriously prejudicial and “so undermine[s] the

fundamental fairness of the [proceeding] itself so as to cast serious

doubt on the reliability of the judgment of conviction.” Hagos v.

People, 2012 CO 63, ¶ 14 (quoting People v. Miller, 113 P.3d 743,

750 (Colo. 2005)).

C. Analysis

¶ 19 According to Harris, the district court misled the jury because

its instructions unnecessarily emphasized Harris’s refusal to take a

blood or Breathalyzer test, an evidentiary fact favorable to the

prosecution. But our supreme court has held that a jury may be

instructed to “consider such refusal along with all other competent

evidence in determining the Defendant’s guilt or innocence,” and in

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doing so, it approved an instruction that required the jury to

determine in the first instance whether the defendant had “refuse[d]

to submit to such chemical test.” Cox v. People, 735 P.2d 153, 155

(Colo. 1987).

¶ 20 We acknowledge the concerns raised over a similar “refusal”

instruction in Judge Welling’s special concurrence in People v.

Montoya, 2022 COA 55M, aff'd in part and rev’d in part, 2024 CO

20. But we see no meaningful difference between the “refusal”

instructions provided in Cox and in this case. Regardless, any error

here could not have been obvious given that instructions of this

type have been widely accepted since Cox. See People v. Pollard,

2013 COA 31M, ¶¶ 39-41 (plain errors must be “so clear-cut, [and]

so obvious, that a trial judge should be able to avoid [them] without

benefit of objection”). Nor, given the strength of the evidence

against Harris, would the inclusion of this instruction seriously

undermine our confidence in the verdict. See Hagos, ¶ 14.

IV. Judicial Bias

¶ 21 Harris contends that the judgment should be reversed because

the trial judge was biased against him. We disagree.

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A. Additional Facts

¶ 22 The prosecution sought to introduce evidence that, in addition

to the prior DUI convictions listed in the complaint, Harris had a

2017 conviction for felony DUI. Defense counsel argued that the

prosecution could not show that the defendant in the 2017 case

was Harris. The trial judge then interjected:

Again, as we get into this I just want to note
that the Court is struggling with the idea of
identity for Mr. Harris because Mr. Harris was
actually in this Court on that [2017 DUI] case
for a significant amount of time. No one has
asked me to do anything with that, but I
am . . . the idea that the People can’t establish
that it’s Mr. Harris in that case is problematic
from the Court’s perspective, but . . . go ahead.

A short time later, the judge said,

I just note the Court is not testifying in this
case, but I do know [the 2017 conviction is]
Mr. Harris. Mr. Harris was in front of me for a
year in that case in treatment court – a year
and a half. I recognize I’m not going to testify
to that. The court specifically cannot testify to
that and I’m not saying I’m going to.

¶ 23 The judge admitted evidence of the 2017 DUI conviction, but,

over the prosecution’s objection, excluded certain information

related to it. While the jury was deliberating but before sentencing,

the trial judge commented that it was his practice to give

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defendants who had appeared before him in treatment court “the

option of being resentenced by another judge.” Neither party asked

the judge to recuse. Nonetheless, after trial but before sentencing,

the trial judge recused sua sponte.

B. Standard of Review and Preservation

¶ 24 Whether a trial judge’s recusal was required is a question of

law that we review de novo. Richardson v. People, 2020 CO 46,

¶ 25. A claim of statutory bias is subject to waiver, People v.

Garcia, 2024 CO 41M, ¶ 1, but a claim of actual bias is not, People

v. Jennings, 2021 COA 112, ¶ 21. A trial before a biased judge is

structural error, requiring reversal regardless of preservation.

Neder v. United States, 527 U.S. 1, 8 (1999).

C. Applicable Law

¶ 25 One guarantee of due process is a fair trial before a fair

tribunal. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876,

(2009). Colorado’s due process clause, Colo. Const. art. II, § 25,

similarly guarantees “the right to a trial before an impartial judge.”

People v. Hall, 2021 CO 71M, ¶ 20.

¶ 26 A judge must recuse “when, objectively speaking, ‘the

probability of actual bias on the part of the judge or decisionmaker

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is too high to be constitutionally tolerable.’” Rippo v. Baker, 580

U.S. 285, 287 (2017) (per curiam) (emphases added) (quoting

Withrow v. Larkin, 421 U.S. 35, 47, (1975)); Sanders v. People, 2024

CO 33, ¶ 29. Actual bias is bias that in all probability will prevent a

judge from dealing fairly with a party. Jennings, ¶ 28. A defendant

asserting bias on the part of a trial judge must establish that the

judge had a “substantial bent of mind against him or her.” People

v. Drake, 748 P.2d 1237, 1249 (Colo. 1988). The record must

establish such bias clearly; mere speculative statements and

conclusions are not enough. Id. Only when the judge was actually

biased will we question the result of a proceeding. Sanders, ¶ 50.

D. Analysis

¶ 27 There can be no doubt that the trial judge’s comments should

have alerted Harris and his attorneys to the issue that he raises on

appeal. But to the extent that Harris contends that those

comments were grounds for statutory disqualification, he never

moved for disqualification of the judge under section 16-6-201(3),

C.R.S. 2024, or for the substitution of the judge under Crim. P.

21(b)(1). “[I]n the context of judicial disqualification specifically,

[the Colorado Supreme Court] ha[s] explained that ‘when a party

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knows of grounds for disqualification but waits to file a motion until

after an adverse judgment has been issued, the motion is barred by

waiver.’” Garcia, 2024 CO 41M, ¶ 46 (quoting People in Interest of

A.G., 262 P.3d 646, 652 (Colo. 2011)). Accordingly, Harris waived

any claim that the judge was statutorily disqualified, and we decline

to review his argument to the contrary on the merits.

¶ 28 To the extent Harris asserts that the trial judge harbored

“actual bias” against him, that issue cannot be waived. See

Jennings, ¶ 21. However, Harris’s actual bias argument was not

well developed in the opening brief; indeed, in his reply brief he

concedes that “the thrust of the argument in the Opening Brief was

that recusal was statutorily mandated.” That largely precludes our

review of Harris’s actual bias claim because we do not consider

arguments raised for the first time in a reply brief. People v. Grant,

174 P.3d 798, 803 (Colo. App. 2007).

¶ 29 The only actual bias argument that we can discern from the

opening brief is that the trial judge’s comments quoted above show

that he had prejudged Harris’s guilt on the question of his prior DUI

convictions. Our examination of the record leads us to the opposite

conclusion. What the judge learned while presiding over

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proceedings connected to Harris’s 2017 DUI conviction does not

establish actual bias. See People v. Roehrs, 2019 COA 31, ¶ 21.

Indeed, “[t]he extrajudicial source doctrine even counsels against

disqualification where a judge has formed an opinion regarding the

guilt or innocence of a defendant unless the opinion is so

pronounced that it is likely to affect the judge’s ability to be

impartial at trial.” Id. at ¶ 22.

¶ 30 In any event, nothing in the record suggests that the trial

judge relied on his knowledge of Harris’s previous conviction to

admit any contested evidence in this case; to the contrary, he ruled

against the prosecution on certain issues related to the 2017

conviction. On these facts, we cannot conclude that the trial judge

had the “substantial bent of mind” necessary for actual bias.

Drake, 748 P.2d at 1249; People In Interest of A.P., 2022 CO 24, ¶

30; see also City of Manassa v. Ruff, 235 P.3d 1051, 1058 (Colo.

2010) (“[I]n the absence of evidence . . . , the mere possibility” of

prejudice “simply poses too remote and insubstantial a risk of

actual bias” to implicate the guarantee of due process.).

V. Disposition

¶ 31 The judgment is affirmed.

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JUDGE HARRIS and JUDGE PAWAR concur.

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