Peo v. Everett

22CA0003 Peo v Everett 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0003
City and County of Denver District Court No. 19CR1628
Honorable Adam J. Espinosa, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James L. Everett,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Michael C. Mattis, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, James L. Everett, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault on a child. Everett contends that the district court erred by

(1) failing to give the jury a statutorily required cautionary

instruction concerning child hearsay; (2) improperly admitting

evidence of an injury sustained by the victim; and (3) erroneously

admitting prior act evidence and providing the jury with confusing

instructions concerning that evidence. He also contends that the

prosecution committed misconduct and that the alleged errors

cumulatively deprived him of a fair trial. Because we conclude that

the court’s failure to give the child hearsay cautionary instruction

amounted to plain error under controlling supreme court precedent,

we reverse Everett’s conviction and remand for a new trial.

I. Background

¶2 In February 2019, C.B. disclosed to her father that Everett,

her older stepbrother, had sexually abused her repeatedly for years.

The disclosure came after C.B.’s father had confronted her about

her interactions with boys and her inappropriate social media use,

the two had discussed some of the “very hard things . . . that can

happen [to] a young lady,” and the father had reassured C.B. that

1
she could tell him anything. C.B. first provided some details of the

abuse in a letter to her father and later filed a police report.

Following the initial report, forensic interviewer Dolce Solis

interviewed C.B., and sexual assault nurse examiner Sarah Eckhart

examined C.B. (SANE exam).

¶3 Most of the abuse occurred when Everett was a minor, and

Everett was prosecuted separately for those acts in a juvenile

delinquency case. But the single instance of sexual assault charged

in this case was alleged to have occurred sometime between

December 1, 2018, and January 31, 2019, when Everett was twenty

years old and C.B. was thirteen.

¶4 Before trial, the prosecution filed a notice of intent to

introduce child hearsay statements under section 13-25-129,

C.R.S. 2025. After an evidentiary hearing, the district court

determined that the child hearsay evidence was admissible.

¶5 A four-day jury trial began in October 2021. Although C.B.

testified, the bulk of her relatively short testimony focused on the

acts of sexual abuse that had occurred from the time she was in

“elementary school going into middle school.” She said it happened

“way more than [forty]” times. As for the single instance of charged

2
conduct, C.B. testified only that it had occurred “around

Christmas” or “between” Christmas and New Year’s Day. When

asked for details of the charged conduct, C.B. responded, “I don’t

remember the last time. It’s not in my brain. And if it is, it’s locked

in a box.”

¶6 The prosecution also presented the following witnesses and

exhibits, which relayed C.B.’s hearsay statements to the jury:

• C.B.’s father testified about C.B. disclosing the abuse to

him and the letter she drafted about it. During the father’s

testimony, the prosecutor introduced the letter, the court

admitted it into evidence, and the prosecutor read it aloud

to the jury. In the letter, C.B. said Everett “would molest

[her] nearly every night” and that the abuse “was ongoing

until the end of last year.” She wrote that “[t]he reason why

[she has] had so many social media issues is because [she]

is trying not to think about it.” She said she thought about

killing herself and killing Everett and slept with a knife for

protection. After her father asked her to explain what she

meant by “molest,” C.B. added the following to her letter:

“He would force my pant[s] and panties off [and] put his

3
privates on mine and hump until he got to a point where he

was going to nut and then leave.” C.B. provided no specific

details regarding the charged conduct.

• C.B.’s grandmother testified that she read the letter C.B.

wrote and asked C.B. whether it was true. C.B. said,

“[Y]es.” The grandmother also testified to C.B.’s statements

about how long the abuse occurred, why she had not

reported it before, and that she wanted to “press charges”

against Everett.

• Officer Timasha Haliburton testified about C.B.’s initial

police report in late February 2019. During Officer

Haliburton’s testimony, the court admitted the police report

and the prosecutor read it aloud to the jury. In the police

report, C.B. said that Everett sexually assaulted her “nearly

every night . . . for years” and provided details of how the

assaults would occur that were like those included in her

letter to her father. She said that “[t]he last time he did [it]

was when [she] moved to a bigger apartment” but provided

no other details regarding the charged conduct.

4
• Dulce Solis, who was qualified as an expert in child forensic

interviewing, testified about the forensic interview she

conducted the day after C.B. made her initial police report.

During the hour-long interview presented in full to the jury,

C.B. recounted the history of the assaults. She told Solis

that, starting when she was nine years old and in fourth

grade, Everett would come into her room “every night” he

stayed at her mother’s house, pull down her pants and

panties, put his privates “on but not in” her privates, and

“hump” her from behind. In response to Solis’ questions,

C.B. described the first time Everett assaulted her in detail.

She said that the abuse stopped when the family moved to a

new apartment but that the last time it happened was at

that apartment when Everett “came back to visit” “between

Christmas and New Year’s” in 2018. That time, Everett

crawled into C.B.’s bed and got under the covers behind

her, but she sat up and said, “No.” Everett left and came

back multiple times but eventually rolled C.B. away from

him, pulled down her shorts and underwear, and “started

doing the same thing” on the “outside” of her privates while

5
grabbing her breasts. The prosecutor also admitted Solis’

notes from the interview, including diagrams she made with

C.B.’s input.

• Detective Marika Lawrenson, who was assigned to

investigate the case and observed C.B.’s forensic interview,

testified that C.B. identified Everett as the person “she had

been talking about earlier in the forensic interview.”

• Sarah Eckhart, a pediatric nurse practitioner who was

qualified as an expert in sexual assault nurse examination,

testified about statements C.B. made during her SANE

exam in March 2019. C.B. told Eckhart that she was being

examined because she had “been touched inappropriately

by a family member” and identified Everett as the

perpetrator. C.B. said that the abuse began when she was

in fourth or fifth grade, that Everett touched her vagina with

his penis, and that she experienced pain but not bleeding.

When Eckhart asked C.B. when was the last time it

happened, C.B. said, “[E]ither December or January,” three

months prior.

6
• C.B.’s mother testified that C.B. told her about the abuse in

March 2019. C.B. said, “[F]or the last five years, [Everett]

has been molesting me.” C.B.’s mother then repeated the

details C.B. shared with her about the assaults. As to the

charged offense, C.B. said Everett was “drinking beer” and

came in, “she tried to fight him off,” and “it hurt,” which the

mother said she understood to mean that Everett

penetrated C.B.

¶7 The district court did not provide the jury with a child hearsay

cautionary instruction. The jury found Everett guilty of the single

charged count of sexual assault on a child, and the court sentenced

him to eight years to life in the custody of the Department of

Corrections.

II. Child Hearsay Cautionary Instruction

¶8 Everett contends that the district court’s failure to instruct the

jury as required by the child hearsay statute, section 13-25-129(6),

constitutes plain error and requires the reversal of his conviction.

Under controlling supreme court precedent, we agree.

7
A. Applicable Law

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

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

the truth of the matter asserted.” CRE 801(c). Generally, hearsay

statements are presumptively inadmissible at trial, absent a

relevant court rule or statute. CRE 802.

¶ 10 Section 13-25-129 provides one such exception to the general

hearsay rule for out-of-court statements made by a child victim of

an unlawful sexual behavior offense.1 While the statute authorizes

the admission of certain child hearsay statements, it also requires

that certain procedures be followed when admitting such

statements, including that the trial court provide a cautionary jury

instruction:

1 As relevant, section 13-25-129(2), C.R.S. 2025, provides that an

out-of-court statement made by a child (as defined under the
statutes that are the subject of the action — here, a person less
than fifteen years of age, § 18-3-405(1), C.R.S. 2025) describing all
or part of an offense of unlawful sexual behavior as defined by
section 16-22-102(9), C.R.S. 2025, is admissible in any criminal,
delinquency, or civil proceeding if the child either testifies or is
unavailable and there is corroborative evidence. The statute also
requires that the trial court conduct a pretrial hearing to determine
that the time, content, and circumstances of the statement provide
sufficient safeguards of reliability. § 13-25-129(5)(a).

8
If a statement is admitted pursuant to this
section, the court shall instruct the jury in the
final written instructions that during the
proceeding the jury heard evidence repeating a
child’s out-of-court statement and that it is for
the jury to determine the weight and credit to
be given the statement and that, in making the
determination, the jury shall consider the age
and maturity of the child, the nature of the
statement, the circumstances under which the
statement was made, and any other relevant
factor.

§ 13-25-129(6).

¶ 11 The “admission of a child’s out-of-court statements through

the testimony of other witnesses creates a danger that a defendant’s

rights may be prejudiced.” People v. McClure, 779 P.2d 864, 866

(Colo. 1989). But, particularly in sexual assault cases, the

“admission of the child’s hearsay statements may be necessary for

the prosecution to prove its case.” Id. Recognizing this tension, the

legislature “struck a balance between the necessity of proof on the

part of the prosecution and the danger of unfair prejudice to the

defendant.” Id.

¶ 12 The statute’s procedural requirements “are designed to

safeguard those rights of the defendant which are implicated when

a hearsay statement is permitted into evidence” — namely, the

9
“defendant’s right of confrontation and his due process right to a

fair trial.” Id. To achieve that end, the instruction “directs the jury

to use special care in evaluating the credibility of the child who

made the statement and the circumstances under which the

statement was made.” Id. Failure to instruct the jury with the

required cautionary instruction in the final charge is error. See id.2

B. The District Court’s Failure to Give the Child Hearsay
Cautionary Instruction Was Obvious Error

¶ 13 The district court did not provide the jury with a cautionary

instruction on the nature of child hearsay statements as required

by section 13-25-129(6). See COLJI-Crim. D:12 (2024). Everett

contends, the People concede, and we agree that the court erred by

failing to give the child hearsay cautionary instruction. See

McClure, 779 P.2d at 866; see also People v. Paglione, 2014 COA 54,

2 In People v. McClure, the supreme court determined that section

13-25-129, C.R.S. 1987, required a trial court to “give the
cautionary instruction contemporaneously with the admission of
this particular type of evidence, and again in the court’s general
charge to the jury at the conclusion of the case.” 779 P.2d 864, 866
(Colo. 1989). The statute has since been amended and now
requires only that the instruction be provided in the “final written
instructions.” Ch. 150, sec. 1, § 13-25-129(2), 1993 Colo. Sess.
Laws 515; see People v. Burgess, 946 P.2d 565, 568 (Colo. App.
1997).

10
¶ 45 (trial courts have “a duty to correctly instruct the jury on the

law applicable to the case,” and we review de novo the instructions

as a whole to determine whether they accurately informed the jury).

¶ 14 But defense counsel did not request the instruction and did

not object to the court’s failure to give it at trial. Consequently, we

will only reverse Everett’s conviction if the error was plain. See

Hagos v. People, 2012 CO 63, ¶ 14 (we review all errors that were

not preserved by objection for plain error). Plain error is error that

is both obvious and substantial. Id.

¶ 15 An error is obvious if the act or omission challenged on appeal

contravenes a clear statutory command, a well-settled legal

principle, or Colorado case law. People v. Walker, 2022 COA 15,

¶ 68. Because section 13-25-129(6) requires a child hearsay

cautionary instruction, Everett contends, the People concede, and

again we agree that the error was obvious. See Walker, ¶ 68.

¶ 16 Thus, the narrow question before us is whether the error was

substantial — that is, whether it so undermined the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction. Hagos, ¶ 14. We turn to that

question next.

11
C. The District Court’s Failure to Give the Child Hearsay
Cautionary Instruction Was Substantial

¶ 17 Everett contends that the district court’s failure to give the

jury the child hearsay cautionary instruction was a substantial

error because the entirety of the evidence supporting the charged

allegations was child hearsay, the prosecution used child hearsay to

expand the timeframe of the allegations beyond what had been

charged in the original information, and the child hearsay witnesses

bolstered C.B.’s credibility “in a close case where the result rested

on her credibility.” We agree with Everett that the error requires

reversal under McClure, which is binding on us. See People v.

Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010).

¶ 18 Everett was charged with sexual assault on a child under

section 18-3-405, C.R.S. 2025. Specifically, the People alleged that

“between and including approximately December 1, 2018, and

January 31, 2019, [Everett] unlawfully, feloniously, and knowingly

subjected [C.B.], not his spouse, to sexual contact and the victim

was less than fifteen years of age and the defendant was at least

four years older than the victim.” The People also alleged that

Everett “applied force against the victim in order to accomplish or

12
facilitate the sexual contact,” a sentence enhancer that made the

crime a class 3 felony. See § 18-3-405(2)(a).

¶ 19 C.B.’s trial testimony focused on the assaults Everett

committed against her when he was a juvenile, for which Everett

faced charges in a separate case. Regarding the charged assault,

C.B. testified only that it occurred sometime between Christmas

and New Year’s Day. She could not remember any other details. As

a result, the prosecution could not meet its burden of proof based

on C.B.’s testimony alone. There were no eyewitnesses and no

physical evidence of the crime.

¶ 20 In fact, the only evidence of the single instance of charged

conduct and the associated sentence enhancer came in the form of

child hearsay, admitted through seven witnesses (including two

experts3 and two police officers), two documents written by C.B.,

and the video of C.B.’s forensic interview. See Chirinos-Raudales v.

People, 2023 CO 33, ¶¶ 12, 16 (considering the admissibility of a

forensic interview under the child hearsay statute). Notably, the

3 We acknowledge that Solis did not testify to any statements C.B.

made; rather, the hearsay that was admitted during Solis’
examination was the recording of C.B.’s forensic interview.

13
hearsay witnesses and exhibits not only established the elements of

the charged offense and sentence enhancer, but they also relayed

C.B.’s account of years of sexual assaults perpetrated by Everett,

which were admitted under CRE 404(b).

¶ 21 The prosecution also relied on child hearsay to expand the

timeframe for the charged conduct and to counter defense evidence

that Everett was in Florida from November 9, 2018, until January

3, 2019. The initial complaint charged that the unlawful sexual act

occurred sometime between “December 1, 2018, and December 31,

2018.” Later, after Eckhart testified during a motions hearing that

C.B. told her that the “last incident happened sometime in

December or January,” the People moved to amend the count to

expand the timeframe to include January 31, 2019.

¶ 22 At trial, C.B. testified that the assault occurred between

December 25, 2018, and January 1, 2019, a time when Everett was

in Florida, according to his evidence. The next day, Eckhart

testified that C.B. told her the abuse occurred in “either December

or January.” The child hearsay Eckhart relayed permitted the

prosecution to argue that Everett sexually abused C.B. after he

14
returned to Colorado on January 3, 2019, even though that

argument was inconsistent with C.B.’s account.

¶ 23 In arguing that the error here entitles him to a new trial,

Everett relies on McClure. In that case, several witnesses testified to

hearsay statements made by the child sexual assault victim, but

the trial court did not provide the jury with the cautionary

instruction required by section 13-25-129. McClure, 779 P.2d at

865. The supreme court held that the trial court’s failure to

instruct the jury was error. Id. at 866. Because the defendant

failed to request the instruction and failed to object to its omission,

the supreme court considered whether the error required reversal

under the plain error standard of review. Id. at 866-67.

¶ 24 In concluding that reversal was required, the supreme court

explained that five witnesses “testified extensively as to the details

of the sexual assault” and “corroborated the substance of the other

witnesses’ testimony.” Id. at 867. Of the five witnesses, two were

qualified as experts and a third was a police officer with “extensive

experience in child sexual assault.” Id. The supreme court warned

that “when an expert witness testifies as to a hearsay statement,

there is a danger that the jury will accept the statement as true,

15
without critically evaluating the credibility of the source of the

statement.” Id. at 866. The supreme court also explained that,

“[w]ith five witnesses reinforcing [the victim’s] testimony concerning

the details of the sexual assault, the child’s credibility may very well

have been bolstered in the eyes of the jury.” Id. at 867.

¶ 25 “In view of the number of witnesses, their credentials, and the

content of their testimony,”4 the supreme court could not “say that

the trial court’s failure to give the cautionary instruction to the jury

did not prejudice the defendant’s rights to a fair trial.” Id. The

supreme court reversed the judgment of conviction and remanded

the case for a new trial. Id.

¶ 26 Comparing the facts in this case to those in McClure compels

us to conclude that the error warrants reversal. Here, the

prosecution elicited child hearsay through seven witnesses, two

documents, and a video — more witnesses and exhibits than were

admitted in McClure. See id. Like McClure, two of the witnesses

4 The supreme court did not explain what the victim testified to or

what details the other witnesses shared about the sexual assaults,
so we are not able to compare the content of the child hearsay
admitted in that case to what was admitted in this case.

16
were qualified as experts and two others were affiliated with law

enforcement. See id. at 866-67.

¶ 27 In McClure, the child hearsay served to corroborate the

victim’s in-court testimony and bolster her credibility. Id. at 867.

Here, the child hearsay corroborated C.B.’s testimony about the

prior assaults, thereby bolstering her credibility. But it also served

as a complete substitute for C.B.’s testimony regarding the charged

assault given C.B.’s inability to recall the details. Although the

prosecution is certainly entitled to, and sometimes must, prove its

case through child hearsay, see id. at 866, such a strategy makes it

even more important that the court properly instruct the jury as

mandated by statute.

¶ 28 We are not ultimately persuaded by the People’s argument

that People v. Wood, 743 P.2d 422 (Colo. 1987), compels a different

conclusion. The controversy in Wood centered around the

testimony of a single witness — the victim’s schoolmate — who

“testified that the victim told her that the defendant was sexually

abusing her” and that the schoolmate “told the victim to talk to a

school counselor.” Id. at 428. The supreme court observed that the

witness’ testimony “served merely to corroborate the testimony of

17
the victim that she had told two of her schoolmates” of the abuse

and that “one of them had told her that she ‘should have told

somebody.’” Id. The supreme court concluded that it could not

“say with fair assurance that the omission to instruct the jury in

accordance with section 13-25-129[(6)] so undermined the

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

the reliability of the judgment of conviction.” Id.

¶ 29 In McClure, the supreme court acknowledged its earlier

decision in Wood but distinguished it on three bases: (1) Wood

“involved the testimony of one witness as opposed to five”; (2) in

Wood, “there was no danger that testimony given by an expert

would be imbued with special credibility, whereas in [McClure] such

a substantial risk does exist”; and (3) the witness in Wood did not

testify to the details of the sexual acts. McClure, 779 P.2d at 867.

We can distinguish Wood from this case for the same reasons.

¶ 30 While Wood considered hearsay testimony from one

school-aged child, 743 P.2d at 428, the hearsay here came through

seven adult witnesses, including two experts and two police officers.

In addition, the sole hearsay witness in Wood did not disclose any

details of the sexual abuse. Id. Here, several witnesses testified

18
about the details of both the charged assault and the prior assaults

and were used to introduce documentary and video exhibits that set

forth C.B.’s statements detailing the abuse. Finally, although the

hearsay evidence was “corroborative” of some of C.B.’s testimony

about the prior instances of assault, it was neither “cursory” nor

merely “cumulative” of C.B.’s account given her inability to recall

specific details of the charged abuse. Id.

¶ 31 That said, we see some gaps in the analysis in McClure that

give us pause. First, as the People contend, any prejudice resulting

from the district court’s error here was arguably mitigated by the

court giving the general credibility instruction, which encourages

the jury to judge witness credibility by many of the same factors as

the child hearsay cautionary instruction. See COLJI-Crim. E:05

(2024). The supreme court in McClure did not indicate whether the

trial court had given the jury a standard general credibility

instruction. But in Wood, the court thought that was important to

the analysis — and for good reason. The model general credibility

instruction says the following:

You are the sole judges of the credibility of
each witness and the weight to be given to the
witness’s testimony. You should carefully

19
consider all of the testimony given and the
circumstances under which each witness has
testified.

For each witness, consider that person’s
knowledge, motive, state of mind, demeanor,
and manner while testifying. Consider the
witness’s ability to observe, the strength of
that person’s memory, and how that person
obtained his or her knowledge. Consider any
relationship the witness may have to either
side of the case, and how each witness might
be affected by the verdict. Consider how the
testimony of the witness is supported or
contradicted by other evidence in the case.
You should consider all facts and
circumstances shown by the evidence when
you evaluate each witness’s testimony.

You may believe all of the testimony of a
witness, part of it, or none of it.

COLJI-Crim. E:05.

¶ 32 By comparison, section 13-25-129(6) says the court must tell

the jurors that

during the proceeding the jury heard evidence
repeating a child’s out-of-court statement and
that it is for the jury to determine the weight
and credit to be given to the statement and
that, in making the determination, the jury
should consider the age and maturity of the
child, the nature of the statement, the
circumstances under which the statement was
made, and any other relevant factor.

20
¶ 33 The primary difference between these two instructions is that,

unlike the general credibility instruction, the child hearsay

cautionary instruction expressly tells the jury that it should

consider “the age and maturity of the child” when assessing the

credibility of the child’s out-of-court statements. But even in the

absence of an express instruction, it is reasonable to believe that

jurors would consider the child’s age and maturity because those

facts are naturally subsumed within the more general

considerations expressed in the general credibility instruction. The

court in Wood apparently thought so too, since it concluded that

the general credibility instruction “adequately made [the jury] aware

of its responsibility to examine the credibility of the witnesses.”

Wood, 743 P.2d at 428. And yet, the court in McClure did not even

mention the general credibility instruction or acknowledge that just

two years earlier it had deemed that instruction important in the

plain error analysis.

¶ 34 But if the legislature believed that the general credibility

instruction was sufficient to protect the defendant’s rights and

address the danger of unfair prejudice resulting from the admission

of child hearsay, why would it have enacted section 13-25-129(6)

21
requiring an additional instruction? We do not know. But we do

know that the failure to give the instruction can be harmless

because Wood tells us that.5

¶ 35 Importantly, the supreme court has, in other contexts, held

that a failure to follow statutory dictates is harmless unless the

defendant can show prejudice. For example, the supreme court has

held that a defendant’s loss of a statutorily granted peremptory

strike is “necessarily harmless” unless the defendant can show bad

faith or actual participation of a biased juror (which would implicate

the defendant’s constitutional right to a trial before a fair and

impartial jury). Vigil v. People, 2019 CO 105, ¶¶ 11-22; see People

v. Novotny, 2014 CO 18, ¶¶ 14-27. And notwithstanding McClure,

we are hard-pressed to imagine what prejudice might come from a

trial court’s failure to give the child hearsay cautionary instruction

when it gave the general credibility instruction. It may be better

5 Under the supreme court’s more recent pronouncements on

structural and harmless error, failing to give the child hearsay
cautionary instruction cannot be the type of error that mandates
reversal regardless of prejudice. See, e.g., People v. Abu-Nantambu-
El, 2019 CO 106, ¶¶ 24-25 (erroneous denial of a challenge for
cause under section 16-10-103(1), C.R.S. 2025, does not require
reversal because the statute does not expressly call for that
remedy); People v. Novotny, 2014 CO 18, ¶ 20.

22
practice to give the former, but in these circumstances, it is unlikely

to prejudice the defendant to fail to do so.

¶ 36 This brings us to our second concern with the supreme court’s

analysis in McClure. The court emphasized the “suspect nature of

hearsay evidence,” a point with which we do not quarrel as a

general matter, but it did so from the perspective that such

evidence undermines “the defendant’s right of confrontation and his

due process right to a fair trial,” two rights that derive from the

United States and Colorado Constitutions. See McClure, 779 P.2d

at 866-67. It seems that the court may have assumed that a

special instruction like the one required by section 13-25-129(6)

carries with it some constitutional significance. But although “[t]he

confrontation right and hearsay rules stem from the same roots and

are designed to protect similar interests,” id. at 866 (citation

omitted), we are not aware of any authority holding that failing to

instruct the jury specifically to consider the age and maturity of the

child who made a hearsay statement violates or even implicates a

defendant’s constitutional rights. Cf. Vigil, ¶ 16 (recognizing that

while the legislature confers peremptory challenges in aid of

protecting a defendant’s right to a fair and impartial jury, such

23
challenges have no basis in the constitution and are purely a

creature of legislation).6

¶ 37 Third, the legislature has already walked back part of

McClure’s holding. In McClure, the court observed that the statute

did not say when in the course of a trial a court must give the

instruction. It then held that “a trial court must give the cautionary

instruction contemporaneously with the admission of this

particular type of evidence, and again in the court’s general charge

to the jury at the conclusion of the case, and failure to do so is

reversible error.” McClure, 779 P.2d at 866.

¶ 38 But in 1993, the legislature amended the statute to clarify that

the instruction must be given only in “the final written

instructions.” Ch. 150, sec. 1, § 13-25-129(2), 1993 Colo. Sess.

Laws 515 (now codified at § 13-25-129(6)). Given that the

requirement to give the instruction is entirely a creature of statute,

the legislature’s partial abrogation of McClure would seem to

6 The same could be said of the statutory speedy trial deadline

established by section 18-1-405(1), C.R.S. 2025. While that
deadline is intended to protect a defendant’s constitutional right to
a speedy trial, see Simakis v. Dist. Ct., 577 P.2d 3, 4 (Colo. 1978),
the six-month deadline itself is not constitutionally mandated.

24
counsel in favor of attributing less weight to the potential prejudice

occasioned by failing to give the instruction.

¶ 39 Were we writing on a clean slate, these points might persuade

us that failing to give the child hearsay cautionary instruction in

this case did not so undermine the fundamental fairness of the trial

as to cast serious doubt on the reliability of the judgment of

conviction. See Hagos, ¶ 14. But we are not writing on a clean

slate. McClure is the law. And we do not see enough daylight

between the facts in McClure and the facts in this case to justify

distinguishing McClure on any principled basis.

¶ 40 With so many witnesses and exhibits “reinforcing [C.B.’s]

testimony concerning the details of the sexual assault, the child’s

credibility may very well have been bolstered in the eyes of the

jury.” McClure, 779 P.2d at 867. “In the absence of the cautionary

instruction, which makes the jury aware of the suspect nature of

hearsay evidence, the jury may have failed in its responsibility to

examine the credibility of the source of these statements.” Id. “In

view of the number of witnesses, their credentials, and the content

of their testimony, we cannot say that the [district] court’s failure to

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give the cautionary instruction to the jury did not prejudice the

defendant’s rights to a fair trial.” Id.

¶ 41 Thus, we conclude that the district court’s failure to instruct

the jury as required by section 13-25-129(6) constitutes plain error

and mandates reversal. And because the balance of Everett’s

contentions involve alleged errors that are unlikely to arise in the

same context on remand, we decline to address them. See People v.

Aldridge, 2018 COA 131, ¶ 43.

III. Disposition

¶ 42 We reverse the judgment of conviction and remand the case to

the district court for a new trial.

JUDGE J. JONES and JUDGE YUN concur.

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